Third degree TORTURE

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Editor: NAGARAJA.M.R… VOL.10 issue.15… .13/04/2016

 

 

 

 

 

PIL –  Why NOT 3rd degree Torture , Death Sentence to  Corrupt Judges , Police & Doctors

IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION

CRIMINAL WRIT PETITION NO. OF 2015

IN THE MATTER OF

NAGARAJA . M.R

editor SOS e Clarion of Dalit & SOS e Voice for Justice
# LIG 2 , No 761 ,, HUDCO First Stage , Laxmikantanagar ,
Hebbal , Mysore – 570017 , Karnataka State
.
….Petitioner

Versus

Honourable Chief Justice of India , Supreme Court of India & Others

….Respondents

PETITION UNDER ARTICLE 12 to ARTICLE 35 & ARTICLE 51A OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLE 32 & ARTICLE 226 OF THE CONSTITUTION OF INDIA.

To ,
Hon’ble The Chief Justice of India and His Lordship’s Companion
Justices of the Supreme Court of India.

 

The Humble petition of the  Petitioner above named.

MOST RESPECTFULLY SHOWETH :

1. Facts of the case:
“Power will go to the hands of rascals, , rogues and freebooters. All Indian leaders will be of low calibre and men of straw. They will have sweet tongues and silly hearts. They will fight among themselves for
power and will be lost in political squabbles . A day would come when even air & water will be taxed.” Sir Winston made this statement in the House of Commons just before the independence of India & Pakistan. Sadly , the forewarning of Late Winston Churchill has been proved right by some of our criminal , corrupt public servants , corrupt judges , corrupt  police & corrupt  doctors.

2.  some  unfit people  based on their  connections , money power , etc  everything else other than MERIT  , HONESTY , INTEGRITY  have  become  Judges ,  Police & Doctors. These  unfit people have used criminal means for their selection and indulge in crimes by  selling their official duties for a price. Recent example : Delhi  Judge Selection Examination , KPSC & VYAPAM scams.

3. These unfit judges declare  rich criminals as innocents & send innocents to jail for a price. These unfit police  leave criminals , file B report to close cases , change charge sheet , change path of investigation / prosecution ,  fit innocents in cases using 3rd  degree torture methods , does contract / supari killing in the name of encounters , etc all for a price. These  corrupt doctors  give false post mortem reports , misguiding medico legal opinions  and  illegally advice police  how to torture a human being without leaving any evidences.

4.  Honest few in judiciary , police , health services & public services  are just mute spectators , they are not raising their voice , not legally prosecuting their corrupt colleagues.  It also amounts to corroboration &  a crime.

5 .  Due to these type of match fixing by Judges & police  many innocents are serving jail sentence behind bars & some have been hanged ,  while the rich crooks are roaming free.

2. Question(s) of Law:

Are  doctors , police & Judges above law ? Can  Doctors , Judges & Police Commit crimes , go scot free ? Can Judges & Police intentionally neglect ( to aid criminals ) their duties , while shamelessly drawing tens of thousands of rupees monthly salary & perks on time without fail from public exchequer.

Is it not the duty of doctor  to heal the pain of a human being rather than give pain to a human being ? is a doctor legally authorized to torture  or  aid torture of a human being ?

Is it not the duty of police to uphold our law , protect  public , common man  rather  than illegally  fixing them in cases ? are police legally authorized to  subject a human being to torture ? Are  not police  responsible for life , health & safety of persons under their custody ?

Is it not the duty of a judge to uphold law , protect public ? is it not his duty  to check the veracity of claims , reports by police , doctors  giving fake evidences , reports ? is it not duty of a judge to protect  life , health & safety of persons under judicial custody  or serving  prison sentence based on judicial orders ?

3. Grounds:

All Indian citizens are  guaranteed  with fundamental rights of  life  , liberty , health , safety , equitable justice  under constitution of india.

All Indian citizens are  guaranteed  with  human  rights of  life  , liberty , health , safety , equitable justice  under constitution of india  as india is also a signatory of UN Human Rights Charter.

All  Human Beings  are  guaranteed  with  human  rights of  life  , liberty , health , safety , equitable justice   by  virtue of their  birth  itself  irrespective of any constitutional bodies  or statutory bodies.
Requests for equitable justice , Prosecution of corrupt public servants , corrupt doctors , corrupt judges , corrupt police. Request for supreme court orders to doctors ,  judges & police to perform  their duties properly.

4. Averment:

Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants in the following cases to perform their duties & to answer the questions.

PRAYER:
In the above premises, it is prayed that this Hon’ble Court may be pleased:

a . Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants in the following cases to perform their duties & to answer the questions.
b . to pass such other orders and further orders as may be deemed necessary on the facts and in the circumstances of the case.

c. to constitute impartial  statutory investigation committee  comprising  NGOs , press , police & judiciary  at taluk levels  to investigate cases of 3rd degree torture by law enforcement agencies . Essentially these committees  must include  a member from victim’s side  during investigation & prosecution. The  state government must bear the cost of  it’s  functioning  including  transportation , food , remuneration at actual rate.

d.   In the cases of 3rd degree torture , fake encounters  , there must be provision  for  2nd , 3rd  medical examination , medical opinion by doctors  appointed by  investigation committee.

e.  when government doctors are  caught giving false  post mortem reports , false  medical opinions  they must be dismissed from service  and legally prosecuted for  abetting  torture , attempt to murder or murder as the case may be.

f. when  police , jail staff or law enforcing personnel  are  caught  for  physically & mentally torturing a human being , an under trial or convict   they must be dismissed from service  and legally prosecuted for  abetting  torture , attempt to murder or murder as the case may be.

g. when  a judge is caught for giving biased  judicial order  without examining  the veracity of evidences , statements , reports given by police , law enforcement personnel , doctors , when a judge bases his judicial orders on  forced  confessions taken from under trials , convicts by 3rd degree torture methods , those judges  must be dismissed from service  and legally prosecuted for  abetting  torture , attempt to murder or murder as the case may be.

h.  when a judge  fails to protect life , health , safety of a prisoner , whether under trial or convict , those judges  must be dismissed from service  and legally prosecuted for  abetting  torture , attempt to murder or murder as the case may be.

I . as 3rd degree torture , fake encounters are pre meditated , cold blooded murders , heinous crimes , they are rarest of rare cases  and judges , police , law enforcement officials , doctors  abetting , executing 3rddegree torture , fake encounters must be  hanged till death. They are worse than KASAB.

j. the state government  must give government job  to one from victim’s family  and  must pay compensation at  actual living cost levels to that family .

k. the government must recover  that compensation cost from  salary , pension , properties of guilty judges , police ,  etc as land arrears.

l. to legally prosecute  under murder charges STF police , forest officials  who were responsible for 3rd degree torture ,  encounter deaths of tribals  in MM Hills , Karnataka during operation nab veerappan.

m. to legally prosecute under murder charges judges who failed to protect the lives of under trials ,  convicts  in operation nab veerappan.

n. to legally prosecute under murder charges government  doctors who gave  false  post mortem reports , false medical opinions  about fake encounters , 3rd degree torture of tribals  in operation nab veerappan.
o . to pass such other orders and further orders as may be deemed necessary on the facts and in the circumstances of the case.

FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND, EVER PRAY.

Dated : 10th December 2015 ………………….FILED BY: NAGARAJA.M.R.

Place :  Mysuru , India………………………….PETITIONER-IN-PERSON

 

Editorial : AEROPLANE RIDES FOR CORRUPT   DOCTORS ,  POLICE  &  CORRUPT  JUDGES  OF  INDIA

 

 TORTURE CHAMBERS OF INDIA – 3RD DEGREE TORTURE PERPETRATED BY POLICE IN INDIA – Gross violations of human rights by police

 

Aeroplane is the most cruelest form of 3rd degree torture perpetrated by police on suspects. Many innocent people have confessed to crimes hey have not at all committed unable to bear the torture , pain. Many innocents have been murdered in lock-ups  by police during these type of 3rd degree torture. Even  if we go by the logic of police that  criminals  only sing under torture & they rightly deserve it ,  when a petty criminal  stealing  Rs.10000 is fit for “AEROPLANE TORTURE” , what about criminals stealing crores of rupees , what about corrupt police who aid  tens of such big time criminals by filing B-report , by  putting weak case of prosecution , by delaying tactics allowing for destruction of evidences , etc , what about judges who acquits big time criminals , who give judicial orders while they are in a drunken state ,  who acquit big criminals by conducting hearings even on dates of government holidays (concocted).   Some of the greedy doctors , medical professionals throw medical ethics to wind and take sides with barbaric , inhuman police & judges in their acts of torture against innocents , detainees , under trials. These  barbaric doctors  give  ideas   about  torture methods   to police  , so that  police can  escape legal prosecution for their crimes. These  barbaric doctors give concocted , falsified medical reports , forensic reports   to courts of law.  Judges  without examining the veracity of those reports  and treating them as  sacrosanct  award punishment to innocents   letting off rich crooks , guilty  police.

ARE NOT THESE  CORRUPT  DOCTORS ,  POLICE  &  JUDGES  FIT  FOR  “BUSINESS CLASS  AEROPLANE RIDE TORTURE”  as per the same logic of police ?

At the outset , e – Voice salutes the few honest police personnel who are
silently doing their duties inspite of pressures , harassment by
political bosses & corrupt superiors , inspite of frequent transfers ,
promotion holdups , etc. overcoming the lure of bribe ,those few are
silently doing their duties without any publicity or fanfare. we salute
them & pay our respects to them and hereby appeal to those few honest
to catch their corrupt colleagues.

The police are trained , to crack open the cases of crimes by just
holding onto a thread of clue. Based on that clue they investigate like
“Sherlock holmes” and apprehend the real criminals. nowadays , when
police are under various pressures , stresses – they are frequently
using 3rd degree torture methods on innocents. Mainly there are 3
reasons for this :
1) when the investigating officer (I.O) lacks the brains of Sherlock
holmes , to cover-up his own inefficiency he uses 3rd degree torture on
innocents.
2) When the I.O is biased towards rich , powerful crooks , to frame
innocents & to extract false confessions from them , 3rd degree torture
is used on innocents.
3) When the I.O is properly doing the investigations , but the
higher-ups need very quick results – under work stress I.O uses 3rd
degree torture on innocents.

Nowhere in statuette books , police are legally authorized to punish
let alone torture the detainees / arrested / accussed / suspects. Only
the judiciary has the right to punish the guilty not the police. Even
the judiciary doesn’t have the right to punish the accussed /
suspects , then how come police are using 3rd degree torture unabetted.
Even during encounters , police only have the legal right , authority
to immobilize the opponents so as to arrest them but not to kill them.

There is a reasoning among some sections of society & police that use
of 3RD DEGREE TORTURE by police is a detterent of crimes. It is false
& biased. Take for instance there are numerous scams involving 100’s
of crores of public money – like stock scam , fodder scam , etc
involving rich businessmen , VVIP crooks. Why don’t police use 3rd
degree torture against such rich crooks and recover crores of public
money where as the police use 3rd degree torture against a
pick-pocketer to recover hundred rupees stolen ? double standards by
police.

In media we have seen numerous cases of corrupt police officials in
league with criminals. For the sake of bribe , such police officials
bury cases , destroy evidences , go slow , frame innocents , murder
innocents in the name of encounter , etc. why don’t police use 3rd
degree torture against their corrupt colleagues who are aiding
criminals , anti nationals ? double standards by police.

All the bravery of police is shown before poor , innocents , tribals ,
dalits , before them police give the pose of heroes. Whereas , before
rich , VVIP crooks , they are zeroes. They are simply like scarecrows
before rich crooks.

Torture in any form by anybody is inhuman & illegal. For the purpose of
investigations police have scientific investigative tools like
polygraph, brain mapping , lie detector , etc. these scientific tools
must be used against rich crooks & petty criminals without bias.

Hereby we urge the GOI & all state governments :
1) to book cases of murder against police personnel who use 3rd degree
torture on detainees and kill detainees in the name of encounter
killings.
2) To dismiss such inhuman , cruel personnel from police service and to
forfeit all monetary benefits due to them like gratuity , pension ,
etc.
3) To pay such forfeited amount together with matching government
contribution as compensation to family of the victim’s of 3rd degree
torture & encounter killings.
4) To review , all cases where false confessions were extracted from
innocents by 3rd degree torture.
5) To make liable the executive magistrate of the area , in whose
jurisdiction torture is perpetrated by police on innocents.
6) To make it incumbent on all judicial magistrates ,to provide a
torture free climate to all parties , witnesses in cases before his
court.
7) To make public the amount & source of ransom money paid to forest
brigand veerappan to secure the release of matinee idol mr. raj kumar.
8) To make public justice A.J.Sadashiva’s report on “torture of
tribals , human rights violations by Karnataka police in M.M.HILLS ,
KARNATAKA”.
9) To make it mandatory for police to use scientific tools of
investigations like brain mapping , polygraph , etc without bias
against suspects rich or poor.
10) To include human rights education in preliminary & refresher
training of police personnel.
11) To recruit persons on merit to police force who have aptitude &
knack for investigations.
12) To insulate police from interference from politicians & superiors.
13) To make police force answerable to a neutral apex body instead of
political bosses. Such body must be empowered to deal with all service
matters of police.
14) The political bosses & the society must treat police in a humane
manner and must know that they too have practical limitations. Then on
a reciprocal basis , police will also treat others humanely.
15) The police must be relieved fully from the sentry duties of biggies
& must be put on detective , investigative works.

Nowadays , we are seeing reports of corruption by police & judges in the media
and are also seeing reports of raids by vigilance authorities seizing crores of
wealth from such corrupt police. Some Judges have also amassed crores of wealth.
Who gives them money ? it is rich criminals , anti-nationals . By taking bribe &
hiding the crimes of criminals , the corrupt police & judges are themselves
becoming active parties in the crimes , anti-national activities. Those
shameless , corrupt police & judges are nothing but traitors & anti – nationals
themselves. When an innocent is subjected to 3rd degree torture to extract truth
with justification by investigating agencies that all for the sake of national
security , what degree of torture these corrupt , anti-national police & judges
qualify for ? what type of aeroplane or helicopter the corrupt police / judges
must ride ? ofcourse , for protection of national security. Here also police &
judges have double standards , what a shame.

We at e – voice are for “Rule of Law” & abhor all type of violence. Truly these
police & judges are not building a Ram Rajya of our Mahatma Gandhi’s dream.

Jai Hind. Vande Mataram.

Your’s sincerely,

Nagaraj.M.R.

My 75 days of horror in the hands of Anti-Terror Squad

Original_257-horror-ats-lead

In the police custody of 75 days, I never forget the words of Asstt. Commissioner of Police late Shri Vinod Bhatt, who committed suicide in the second week of August. Before his suicide, during interrogation he told me that he was under immense pressure from his senior officers to implicate us falsely in Mumbai train blast case and he also promised that he will try his best not to implicate all of you innocent people till he is alive.
The Milli Gazette
Published Online: Oct 23, 2010
Print Issue: 1-15 October 2010

Here is the story of Ehtesham Qutub in his own words how he was detained and tortured for two and half months by the Mumbai Anti-Terrorism Squad during the 7/11 blast investigations. He is resident of 202, Safiya Manzil, Naya Nagar, Mira Road (E), Distt. Thane, Maharashtra – 401107. He is currently lodged in a Mumbai jail where his address is: UT-1129/10, 2/4 (Anda Cell), Mumbai Central Prison, Arthur Road, Mumbai. According to an estimate around one thousand such Muslim youths are currently lodged in Indian jails on mere suspicion, concocted evidence mainly confessions extratcted through inhuman torture.

My name is Ehtesham Qutubudin Siddiqui, age: 29 years, occupation: Book Publisher. I was born in Uttar Pradesh in a poor family. In the year 1996, I moved to Mumbai for further education. My residential address in Mumbai is 202, Safiya Manzil, Naya Nagar, Mira Road (East), Thane – 401107 Maharashtra. I completed my XII standard through Maharashtra College, Belasis Road, Mumbai Central. I took admission in Narayan Nagu Patil Engineering College, in Pen. Raigad through Mumbai University in Chemical Engineering course in 1998. I used to stay in a hostel near the campus. However, during my vacation and holidays, I used to visit Mira Road which is my residential permanent address.

On 27 September, 2001 while I was travelling from Pen to visit my house, on the way, I thought of visiting a library situated at Feetwala Compound, Kurla (West) Mumbai, for reading some books. That evening around 8:00 pm, some policemen came in the library and took me along with seven other people to Kurla Police Station. They did not tell me the reason for detention, and arrested me under section 10&13 of Unlawful Activities (Prevention) Act 1967. They informed me that Students Islamic Movement of India has been declared as a banned organisation. They informed me about the offence only after the arrest i.e. when they produced me before Magistrate of Kurla Court. The truth is that I was never associated with any organisation which is mentioned above. The Hon’ble magistrate of Kurla court had released me on bail of Rs. 3000. However the Kurla police, instead of releasing me took me to the police station and put me inside the lock up and said that I have been arrested in another case of the same offence. Kurla police has framed me in false cases which I had nothing to do with, and they have spoilt my reputation in society. In regard to second false case, the police took 15-day custody. After 15 days, I was granted bail of Rs. 8000 security. As it was a conditional bail. I could not continue my studies which resulted in the end of engineering course. After that, I learned Desktop Publishing on my Personal Computer and started a DTP business from my house in Mira Road known as “Graphic Point”. In March 2004, I started a publishing company known as “Shahadah Publishing House” publishing Islamic literature and books on general knowledge. In July 2003, I had taken admission in B Sc to complete my graduation through Indira Gandhi National Open University. But due to my arrest and false implication in 11th July 2006, Mumbai serial train blast case my whole career has gone for a toss.

Due to old record in Kurla police station, it had become a regular routine of detaining me. Every time or whenever any incident took place in Mumbai, I was called by police for a formal interrogation. Besides those two false cases registered by Kurla police,. I do not have any other criminal record as I was living a normal life in Mumbai.

On 11 July, 2006, serial bomb blasts took place on Western Railway during peak hours, that time I was at home. When I learned about the blast at Mira Road, I went to the blast site to help the victims. I knew very well that police will come to me for formal enquiry like the regular police routine, that had been a trend since 2001. Hence senior police Inspector namely Murade of Mira Road police station came to my house on 13 July, 2006 in evening time and asked me to come to the police station on the next day. On 14 July, 2006 at 11:00 am, I went to Mira Road police station to meet Sr. PI Murade. He questioned me about my whereabouts and asked me for my phone number, which I gave him (28115084) and left the police station. He also told me that if required for further investigation I will be called.

Torture position 1: Hitting the victim by flour mill belt on the inner part of hand, buttock and feet about 200 times per spell leaving part of hand and feet in blue colour with strong pain during torture. Other body parts too were hit by this belt any part of body

Torture position 1: Hitting the victim by flour mill belt on the inner part of hand, buttock and feet about 200 times per spell leaving part of hand and feet in blue colour with strong pain during torture. Other body parts too were hit by this belt any part of body

On 24 July, 2006, in the morning around 11:00 am, police sub-Inspector Sunil Mane of Anti-Terrorism Squad (ATS) unit-II, visited my house and asked me to come at Nagpada ATS office, the same day before 3:00 pm. That day I went to Nagpada ATS office at around 2:00 pm. I met PSI Sunil Mane and he told me that senior officials will interrogate me so they will take me to Bhoiwada ATS office. Upon reaching Bhoiwada ATS office, PSI Sunil Mane took me to the second floor in lock up, where he called PI Vilas Joshi, PI Dinesh Ahir, PSI Shailesh Gaekwad and other beating me with belts and sticks and continued beating me till evening. Later they took me from Bhoiwada to Nagpada handcuffed. They did not allow me to inform my parents or any of my relatives. When I was taken from Nagpada to Bhoiwada, before taking me inside the lock up, they emptied my pockets during my physical search. They took away my mobile, ATM card, PAN card and Rs. 25.000 cash, which I was carrying off, with which I wanted to purchase a personal computer. PSI Sunil Mane only made entry of ATM card, PAN card and mobile in panchnama. However they distributed the Rs. 25000 cash among themselves. On 29 July, 2006, when PSI Sunil Mane was prepreparing panchnama, I noticed that he did not mention the Rs. 25.000 cash in the recovery. upon which I asked him about the money. I was surprised by his reply: “bhool ja be tere paise!” (forget your money) 

Anti-Terrorism Squad (ATS) detained me illegally from 24 July, 2006 to 29 July, 2006, as I was not produced before any Magistrate till 29 July, 2006. During this period ATS officers continued beating me for several hours everyday.

ATS officers had searched my house in my absence, as I was in their custody. They took all the books and literature which was published recently into their custody. ATS officers had taken all valuable things from house, which I saw in ATS office and which included computer, printer, drill machine, tape recorder, Rs. 10.000 cash, blankets etc. ATS officers chose two books namely Jihadi Azkar and Islam ki Rooh-Jihad fi Sabilillah, which described basic fundamentals of Jihad in Islam, and contains verses of Qur’an and saying of Prophet Muhammad (pbuh), and does not contain any inflammatory material and is easily available in the market. On the basis of these two books they arrested me on 29 July, 2006 and produced me before Additional Chief Metropolitan Magistrate, 2nd Court, Mazgaon, Mumbai and took me on 15 days police custody u/s 10&13 of Unlawful Activities (Prevention) Act 1967. I was surprised when charge sheet was filed and one book namelyJihad fi sabilillah-kyon added in recovery which was not at my house. I wanted to tell many things to magistrate about the torture and illegal detention but ATS threatened me not to say anything to magistrate or else they will torture me more severely using third degree torture methods, therefore I could not tell any thing to the magistrate.

 

Torture position 2: Giving shock using an electric current machine by making the victim nude. They tie wire on thumbs of legs and private parts of body, then current is passed at regular intervals.

Torture position 2: Giving shock using an electric current machine by making the victim nude. They tie wire on thumbs of legs and private parts of body, then current is passed at regular intervals. 

ATS officer took me to unit-II office and they started beating me, they never told me any thing why they had arrested me but kept beating me. While torturing they used to say that too musalman hai isliye tere ko mar rahe hain (You are Muslim therefore we are thrashing you) with every blow they used to abuse my religion and said tere ko yehan koi nahi bachayega (No one will save you here). On 03 August, 2006 I was cruelly tortured by PSI Shailesh Gaekwad, PSI Sunil Mane and PI Vilas Joshi and asked me to accept the said crime of bomb blast in front of senior officials of ATS because of the torture I agreed to do whatever the ATS officers told me to do. After which they took me to ATS head office, where ATS Chief KP Raghuvanshi and DCP Naval Bajaj were seated in the office. There in front of these senior officers I complained about the torture that PSI Shailesh Gaekwad, PSI Sunil Mane and PI Vilas Joshi had done, and I also told ATS chief KP Raghuvanshi, that I am innocent and they are trying to involve me in the blast case. But to my surprise KP Raghuvanshi slapped me and told the officers that this torture was not enough and asked them to take me to Bhoiwada and beat me black and blue. I completely lost faith in the senior-most officers as well as junior officers because this fraud of framing innocent people was ordered by senior officers of ATS including ATS chief. That on next day i.e. on 05 August, 2006 an officer namely PI Sunil Deshmukh took me to Chandan Chowki at Juhu where the officers conducted Narco analysis test which was illegal and without permission of court, and the officers from Forensic Science Laboratory, Mumbai were also present there. Before taking me to Chandan Chowki, I was taken for medical check up at KEM Hospital, where I had complained about the torture, the medical officer present there referred to get x-ray and gave some medicines. However the medical reports were false and no report of torture was registered. After the illegal Narco test DCP Naval Bajaj told me that, I confirm that you are innocent and we will transfer you to judicial custody on 12 August, 2006. However the next day I was taken to Nagpada unit-II by PI Dinesh Ahir, and upon reaching there he along with other officers tortured me and also gave electric shock on my private parts. After torturing me for ten hours they left me back to Bhoiwada lock up.

 

Torture position 3: After removing clothes, the victim is made to sit on floor with both hands tied behid by rope; thereafter both legs are stretched in opposite direction making 180o angle.

Torture position 3: After removing clothes, the victim is made to sit on floor with both hands tied behind by rope; thereafter both legs are stretched in opposite direction making 180 deg. angle. 

On 12 August, 2006, ATS officers arrested me in Mumbai train serial blast case and took on police custody for two days. ATS officers told me that I will be sent to Judicial custody on 14 August, 2006. However on 14 August, 2006, they took police custody upto 25 August, 2006. On the same day I was taken to Kurla in Vijay Salaskar’s anti-Robbery Squad office which is also a torture room. There the officers beat me with belt and stick and then they handcuffed me to the window and did not allow me to sleep and I remained standing whole night.The same night ie. in the night of 59th anniversary of Independence day, horrifying torture were carried out by Vijay Salaskar’s men on the family members of an accused namely Faisal Shaikh, who is under arrest in the Mumbai train serial blast case. These tortures are a great shame for nation as our country became Independent on the ideology of “ahinsa” propounded by father of nation Mahatma Gandhi. In front of us Vijay Salaskar’s men had removed the dress of 75 year old Faisal’s father and beat him with belt. They also insulted the modesty of woman by uncovering the face of wife of Faisal’s brother, which was covered by veil.

On 21 August, 2006, PI Vilas Joshi, API Survey of Nagpada unit took me to Ujjain by train. There ATS officer showed me a hut 20 km away from Ujjain city. After that they told me that now you had attended a meeting held in 1st week of July at the said place. I was stunned and surprised because they falsely implicated me in the said meeting. On 24 August, 2006, I was taken back to Bhoiwada lock up.

On 25 August, 2006, I was produced before Hon’ble Judge of Mazgaon Court and ATS again took me in police custody till 08 September, 2006 in another case of Mumbai serial train blast registered by Andheri Railway Police Station. ATS officers did not allow me to sleep for six consecutive days. During this period an officer from Ahmadabad, Gujarat namely DG Vanzara also interrogated me and also abused and tortured me. He said that you are in Mumbai that is why you are alive, if you were arrested in Gujarat, I would have done your encounter. DG Vanzara told Naval Bajaj that the arrested accused are Muslims, therefore implicate them in the blast case to avoid public reaction and pressure from the government, and if required shoot any of them and show that they were trying to escape from custody.

 

Torture position 4: Victim is tied to a chair so that he is unable to move his head in any direction; water is dropped slowly on his scalp for hours causing very strong pain in neck and head

Torture position 4: Victim is tied to a chair so that he is unable to move his head in any direction; water is dropped slowly on his scalp for hours causing very strong pain in neck and head. 

On 05 September, 2006, I was taken to ATS Head Office, where police commissioner AN Roy, ATS chief KP Raghuvanshi, Adl. CP SK Jaisawal, Jaijeet Singh were present. However Jaijeet Singh and SK Jaisawal left the room. KP Raghuvanshi told me that “we are not able to find the real culprits and were are planning to frame up the case because government is pressurising us to implicate the arrested accused and finish the case, and also told me that “we will make you an approver in the case and you will be released after some months”. He also offered me Rs. 25 lakhs for becoming an approver. I refused and told him that I am innocent and there is no question of confessing the crime or turning into an approver. The next day I was taken to Bangalore to conduct Brain mapping test, polygraph test and Narco analysis test. PI Raja Mandge and PI Prasad Khandekar took me along with them to Bangalore through Jet Airways. In Bangalore I was taken to Forensic Science Laboratory, where brain mapping and polygraph test was conducted by Dr S Malini. Next day I was taken to Bowring & Lady Curzon Hospital for the Narco analysis test. After conducting this test I was brought back to Mumbai on 08 September, 2006. While returning to Mumbai API Shelke told me in the plane that the test confirms that I am innocent and will be released shortly. However ATS officers produced me before the court and took me in police custody till 14 September, 2006, and arrested me in another case of Mumbai train serial blast registered by Bandra Railway Police Station. On 10 September, I was again taken to Bangalore for another Narco analysis test. The Narco test was conducted on 12 September by Dr S Malini. During the test, I was conscious and understood all the questions asked by Dr S Malina and answer given by me. The next day i.e. on 13 September, 2006, I was brought to Mumbai by another officer PI Prasad Khandekar and was taken to Nagpada ATS head office and produced before KP Raghuvanshi who told me that I have taken lot of rest and now it is time to break your bones. If you want to save yourself then do as directed and become an approver. I declined his offer saying that I am innocent and you all are trying to frame me in an offence which I have nothing to do with. This infuriated him and he told to PI Tajne to take me to Kalachowki police station and beat me till I obey them. PI Tajne took me to Kalachowki police station, there officers including Adl. CP Jaijeet Singh, DCP Naval Bajaj, ACP Sadashiv Laxman Patil PI Raja Mandge, Tajne, Khanwilkar and other constables started beating me using third degree torture methods. During the torture ATS officer showed me an edited CD of the Narco test. When I told them that the CD was edited, they started beating me mercilessly and asked me to act according to their wish. The series of tortur continued till 18 September, 2006, and on the same day PI Khanwilkar talked to me in private and said that he will request to the police commissioner AN Roy for my judicial custody on 22 September, 2006 and after one month I will be discharged from this case. However, when I was produced in court on 22 September, 2006, PI Khanwilkar told me that the senior officers have planned to falsely implicate you people in this case, but also said that do not worry as ATS have no proof of your involvement in this case and you will be discharged or acquitted from this case in about two years.

On 24 September, 2006, ATS officers again took me to Bangalore for Narco analysis test and I understood that the frequency of conducting so many Narco test was only to convince the senior officials of the government. From the Narco test ATS officers wanted some specific word from the accused persons which would incriminate them in this case and they wanted the Narco test video CD edited in a proper manner, which they did with the help of Dr S Malini, who conducted the Narco test thrice on me and other co-accused persons. Dr S Malini is also involved along with the ATS officers in this fraud. On 27 September, 2006, I was brought back to Mumbai on 28 September, 2006, I was produced before Hon’ble special judge Shri Abhay Thipsay in Sewri Session Court and ATS took my police custody under Maharashtra Control of Organised Crime Act 1999 till 09 October, 2006.

On 29 September, 2006, I was tortured continuously for five hours using third degree methods by PSI Sachin Kadam, later I was produced before police commissioner AN Roy and ATS chief KP Raghuvanshi. Both the senior officers laughed at me and KP Raghuvanshi told me that I have been implicated in the blast case and forget about India being a democratic country. India is a Hindu rashtra and there is no place for Muslims in India. Muslims in India are only for jail and encounter. Now the only way to protect yourself from long imprisonment is that you become an approver in this case. I refused to become an approver and told them that the method to save myself was that you people catch the real culprits and release the innocent people. On this AN Roy told me that I have pressure from the home minister of India and home minister of state, and we are unable to do anything besides framing the case on you people and fabricating evidence against you people because I have to answer my seniors also. After this AN Roy told me that tomorrow we are calling a press conference and you all will be famous as terrorists.

On 03 October, 2006, DCP Naval Bajaj came to meet me in Bhoiwada lock up. He was convincing me to sign on some blank paper and some paper with written material, but I did not sign on any of the papers. He abused me and said that I was very stubborn and would not obey without being tortured. After that I was taken to Kalachowki police station for torture.

On 06 October, 2006, PI Tajne produced me before DCP Dattaray Karale of zone IV, where the DCP asked my name and lodged me in Matunga General lock up for 22 hours. During this time PI Tajne and API Deore tortured me in Matunga lock up and threatened me to sign on the papers given to me on next day. Then next day I was taken to the office of DCP Dattararay Karale, where he forced me to sign on some papers, with written material on it. PI Tajne and API Deore were also present in DCP’s cabin. I did not sign the papers voluntarily but upon police pressure and threats I did. Later I was produced before chief metropolitan magistrate SS Shirke. The magistrate asked my name and date of first arrest in front of ATS officers. I did not understand what was going on, then I was sent back to Bhoiwada lock up. On 08 October, 2006, one of the ATS offices told me that the papers which I had signed was my confession, which I was not aware of till this ATS officer informed me. On 09 October, 2006, I retracted my “confession”, which is false and fabricated, before Hon’ble special judge Mridulla Bhatkar, and on the same day I was remanded to judicial custody.

 

Torture position 5: Victim is tied upside down, both legs and hands also are tied by rope, then water is poured into his nose at regular intervals for about one hour

Torture position 5: Victim is tied upside down, both legs and hands also are tied by rope, then water is poured into his nose at regular intervals for about one hour

In the police custody of 75 days, I never forgot the words of Asstt. Commissioner of Police late Shri Vinod Bhatt, who committed suicide in the second week of August. Before his suicide, during interrogation he told me that he was under immense pressure from his senior officers to implicate us falsely in Mumbai train blast case and he also promised that he will try his best not to implicate all of you innocent people till he is alive. Unfortunately Shri Vinod Bhatt committed suicide under tremendous pressure.

In the 75 days long period, police custody, ATS officers used third degree method for torture. The third degree torture methods which were used by ATS officers on me are as follows:

  • ATS officers used belt, which is used in flour mill, to beat us. They strike on the inner part of hand and feet about 200 times per spell leaving part of hand and feet in blue colour with strong pain during torture. After beating the parts of hands and feet become swollen. Medical officer of KEM Hospital supported ATS by not examining properly. ATS also used this belt to torture us also on any part of body, even on buttock also, due to this torture I cannot sit properly.
  • ATS officers gave me shock using an electric current machine by making me nude. They used to tie wire on thumbs of legs and private parts of body. After that they pass the current at regular intervals. ATS used this method of torture four times on me during police custody.
  • After removing my clothes, I was made to sit down on floor, both hands tied by rope behind the body, thereafter my both legs stretched in opposite direction making 180 degree angle. This torture method was repeated many times. During the period of custody they stretched my legs five times.
  • ATS officers tied me on a chair, which is kept very close to wall, they tied my head in a way that I cannot move my head anywhere in any direction. Then they dropped the water drop-by drop on my scalp upto eight hours. Due to this torture very strong pain occurred in neck and head.
  • They used to tie me upside down (i.e. in reverse position) and my both legs and hands also tied by rope, then they used to pour water in my nose at regular intervals about one hour, they used this technique of torture on me 3 times.
  • ATS officers threatened me that my family members also will be arrested in this case or brought by ATS and they will be molested, if I do not sign on confessional statement. They used the example of the family of my co-accused Faisal Shaikh, who was molested by Vijay Salaskar team in front of me.
  • ATS officers, including senior officers of IPS rank police commissioner AN Roy and ATS chief KP Raghunvanshi had given huge amount of cash after release, and also given the inducement of settlement anywhere in the world. These officers also promised many times to discharge me from the case if I became an approver.
I, Ehtesham Qutubuddin Siddiqui, solemnly affirm that whatever has been stated here above is true and correct as per my knowledge and belief. 

This article appeared in The Milli Gazette print issue of 1-15 October 2010 on page no. 8

3rd degree torture of ISRO scientist  by  IB  officials 

http://www.manushi.in/articles.php?articleId=1734#.ViL4C9IrIdU  

Brutal Torture in bhatinda police station 

http://www.pucl.org/Topics/Police/2004/thermal-torture.htm 

 

TORTURE  BY  DOCTORS  

 Even medical professionals , dotors lie , give  false medical reports. , forensic reports  thus facilitating the escape of rich crooks  and  meting out unjust punishment to innocents. The courts of law depends on medical reports as sacrosanct and awards punishment to innocents letting out rich crooks.

Medical torture describes the involvement and sometimes active participation of medical professionals in acts of torture, either to judge what victims can endure, to apply treatments which will enhance torture, or as torturers in their own right. Medical torture may be called medical interrogation if it involves the use of their expert medical knowledge to facilitate interrogation or corporal punishment, in the conduct of torturous human experimentation or in providing professional medical sanction and approval for the torture of prisoners. Medical torture also covers torturous scientific (or pseudo-scientific) experimentation upon unwilling human subjects.

 

Doctors from both non-democratic and democratic countries are involved in torture. The majority of doctors involved in torture are doctors at risk. Doctors at risk might compromise their ethical duty towards patients for the following possible reasons: individual factors (such as career, economic or ideological reasons), threats, orders from a higher ranking officer, political initiatives, working in atrocity-producing situations or dual loyalty. In dual loyalty conflicts, factors that might compromise doctors’ ethical obligations towards detainees/patients are: ideological totalitarianism, moral disengagement, victim blame, patriotism, individual factors or threats. Another important reason why doctors are involved in torture is that not all doctors are trained in addressing human rights issues of detainees. Torture survivors report that they have experienced doctors’ involvement in torture and doctors themselves report that they have been involved in torture. Testimonies from both torture survivors and doctors demonstrate that the most common way doctors are involved is in the diagnosis/medical examination of torture survivors/prisoners. And it is common before, during and after torture. Both torture survivors and doctors state that doctors are involved during torture by treatment and direct participation. Doctors also falsify journals, certificates and reports. When doctors are involved in torture it has devastating consequences for both torture survivors and doctors. The consequences for the survivors can be mistrust of doctors, avoidance of seeking doctors’ help and nightmares involving doctors. Mistrust and avoidance of doctors could be especially fatal to the survivor, as it could mean a survivor who is ill may not seek medical attention. When the unambiguous role of the doctor as the protector and helper of people is questioned, it affects the medical profession all over the world.

Medical Negligence & Connivance of Doctors in custodial torture

It is a matter of immense pleasure and proud privilege for me to present this premier issue of official journal of Punjab Academy of Forensic Medicine and Toxicology. I fully acknowledge many shortcomings & pitfalls in this issue which are bound to be there, when an issue is brought out in a short duration. It is an endeavor to channelise the problems and their solutions by highlighting them. I hope you will like the contents of this issue and will be generous enough to appreciate the spirit behind this humble effort. Environment pollution is the burning problem of the day. Supreme Court has to intervene in many cases of environment pollution, when other agencies responsible for maintaining it have failed to do their duties well. It is also an important part of our duty, when we are dealing with Toxicology to lay proper emphasis on environment pollution so that we can provide a breeding ground for the new ideas & thoughts to make our environment clean. Today there is a chaos as far as our environment is concerned. We are drinking poisons, we are eating poisons and we are inhaling poisons and this trend is on the “increase. It is not that we do not have knowledge of this, but for – short term benefits we are ignoring it. The authorities do not have the will & determination to implement the laws. We will have to act firmly for our own survival and make this earth a better living place for our next generations. This journal is in a budding stage and I aspire as it grows it will give its due contribution towards improving the vitiated atmosphere on this holy planet. In the medico-legal practice many problems are faced by people & doctors. It will be our emphasis to highlight these in the coming issues and try to find out a solution for these problems. Make it a point to share your problems & views, because these are common & let others utilize these solutions for the benefit of masses. R.K. Gorea JPAFMAT, 2001, Vol.: 1 1 MEDICAL NEGLIGENCE IN CUSTODIAL TORTURE Dr. J.S. DALAL, Professor & Head Dr. R.K. GOREA, Associate Professor Dr. K.K. AGGARWAL, Assistant Professor Dr. A.S. THIND, Assistant Professor Dr. S.S. SANDHU, Lecturer Department of Forensic Medicine, G.G.S. Medical College, Faridkot.

 

 India is a democratic country. Although it has already celebrated the silver jubilee of her independence, but in some cases the word of “Independence” & “Democracy” is forgotten particularly by police personnel, who use third degree methods during the investigations in police stations. When the torture crosses the limit, the help of the doctors is sought. Cases have been reported, where the doctor also showed indifference in treatment of such cases. The present paper is a typical example which falls in this category. KEYWORDS: Police torture, Medical negligence.

 

Physical torture by third degree methods is a common mode adopted by the policeman during Interrogation. Most of the other countries do interrogations by scientific methods like “lie detector” etc., but Indian police still lacks such facilities and it has no option but to apply various methods of torture for extracting truth. CASE HISTORY: The present case is an example of such a case. It was in the year 1993 that a person was arrested by police and tortured. When the condition of the victim became serious, he was taken to civil hospital where he was examined by emergency medical officer According to the report by this medical officer, “the patient was conscious, well oriented in time and space and all his vital signs were normal. He had difficulty in walking and his left thigh and left knee were tender and swollen”, except this no other injury was described on his body. The patient was admitted in the hospital and analgesics and local ointment like thromophob and hot fomentation were prescribed to him. Next day the patient developed the fever which went on increasing for the next 3-4 days and ultimately the patient died in a few days. A case was registered under section 304 IPC against the police. The postmortem examination was done by a board of doctors and in the postmortem report as much as 9 injuries were present on his body. His left leg was swollen with abrasions over it. Other injuries were abrasions and there was no fracture or injury to the vital organ anywhere. On dissection of the thigh, it was found to have frank pus and about 300 ml pus oozed out on incision. The cause of death given in the postmortem report was septicemia as a result of injury to the left thigh which was antemortem in nature and sufficient to cause death in the ordinary course of nature. It was, therefore, clear that there was discrepancy in the report of doctor who first examined and admitted the patient and those who conducted the postmortem. Therefore, JPAFMAT, 2001, Vol.: 1 2 another board was constituted for opinion in this case and the board opined that medical negligence played a role in the death of the victim. Had the thigh infection been treated properly in the form of pus drainage by incision etc., with judicious use of antibiotics, the patient could have been saved. This case was referred to our department and after going through the entire record we were also of the same opinion and agreed with the opinion of the second board. This opinion was accepted by the police and the case was converted from 304 IPC to 323 IPC.

 

 

Doctors Who Designed CIA Torture Programs Finally Get Sued

 

The prisoners were held in pitch-dark cells in a secret CIA facility. As part of their torture regimen, they were forced to listen to music — everything from heavy metal to the theme song from Barney & Friends — blasted at ear-damaging levels, designed to break them psychologically. Now, years later, the doctors who designed that program are getting sued, in litigation filed by the ACLU.

In the early 2000s, the CIA contracted with two psychologists, James Mitchell and John Bruce Jessen, to help them design interrogation methods for detainees held in secret prisons in places such as Afghanistan. The methods Mitchell and Jessen designed included “stuffing them inside coffin-like boxes, exposing them to extreme temperatures and ear-splitting levels of music, starving them,” and depriving them of sleep, according to the Senate’s report on CIA torture. If it wasn’t bad enough that the men who were held in these secret detention sites were tortured repeatedly, a recent report on the CIA’s torture program found that it didn’t even lead to useful information.

TO THIS DAY THE TWO MEN HAVE RECEIVED NO APOLOGIES OR COMPENSATION FOR THEIR ORDEAL.

Two survivors and the family of a man who was killed in Afghanistan’s notorious “Salt Pit” prison site are suing Mitchell and Jessen for designing and performing experiments on them that have left them suffering years after they were freed. Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud were both tortured for years, and to this day they have received no apologies or compensation for their ordeal. The family of Gul Rahman, an Afghan man who died of hypothermia while in secret custody, has never received his body.

Although other prisoners have filed lawsuits over their treatment by U.S. agents, this is the first legal action taken against the healthcare professionals who created torture methods and trained the CIA to use them. It’s also the first lawsuit filed by former prisoners since the Senate released a 525-page summary of its report on the torture program, and ACLU lawyer Dror Ladin told Refinery29 that the details now available to the public will make Suleiman’s and Ben Soud’s cases stronger. “Previous lawsuits involving the CIA torture program had a lot less public information to work with,” Ladin said, and the government was able to keep enough information secret that it was all but impossible for former detainees to make their cases.

OUR SINGLE BIGGEST CONCERN IS THAT THERE HAS BEEN ZERO ACCOUNTABILITY FOR THE TORTURE PROGRAM.

DROR LADIN, STAFF ATTORNEY, ACLU NATIONAL SECURITY PROJECT

Suleiman lives in Zanzibar now with his family, and despite suffering through hours of painfully loud music — everything from metal to the Irish boy band Westlife — he uses Bob Marley songs to calm himself when he starts to have flashbacks to his time in detention.

“Our single biggest concern is that there has been zero accountability for the torture program,” said Ladin. “Without that — when you have impunity for torturers, when you don’t even apologize to the victims of it — it’s difficult to see how we’re not going to have history repeat itself in the future. We can just look forward without accounting for what we did in the past. We run a tremendous risk of going down this path.”

One of the strangest things about the two psychologists who designed the program is that they not only received $81 million in government money for teaching people how to inflict physical and psychological damage on others, but they’ve also never faced any penalties for violating professional ethics. “It’s mind-boggling that ethics complaints against them never went anywhere,” Ladin said.

What would success look like for these men? “A successful outcome would be that this case goes forward, and these three victims and survivors get their day in court and get to tell their story,” Ladin says. “A further success would be when these obvious violations of international law, that a judge and jury agree that these plaintiffs should receive some compensation for it.”

 

 

When Doctors Torture

 

The Senate released its report on the CIA’s interrogation program on Tuesday, revealing horrendous details of the torture tactics used on prisoners, including waterboarding, sleep deprivation, and “rectal feeding.” Complicit in this treatment were several “medical officers” (it’s not explicitly stated whether they hold M.D.s), who enabled, oversaw, and designed many of the techniques.

Two psychologists, Dr. James Mitchell and Dr. Bruce Jessen, were paid $81 million to design the program, and medical officers and physicians’ assistants are cited throughout the report as consultants who advised on things like forcing detainees to stand on broken limbs and “rehydrating” via a rectal tube rather than a standard IV infusion. While in many medical schools around the United States, students swear the Hippocratic Oath, saying out loud the words “may I long experience the joy of healing those who seek my help,” CIA medical officers used their intimate knowledge of the human body as a weapon, to harm people the U.S. government deemed enemies.

 

Dr. Steven Miles is a professor at the University of Minnesota Medical School, a board member of the Center for Victims of Torture, and author of Oath Betrayed: America’s Torture Doctors. He has been studying doctors’ involvement in torture programs since photos of the human rights violations at the Abu Ghraib prison in Iraq came to light in 2003. He maintains the website Doctorswhotorture.com, which tracks physician standards of conduct and punishments for doctors who aid torture around the world. We spoke by phone about the CIA report, the role doctors play in interrogation, and how they could be held accountable.


Julie Beck: What role did doctors play in this CIA-mandated torture, and how integral was it?

“Professional codes describe doctors’ duties not only to avoid participating in torture, but to document and report it.”

Steven Miles: What’s new here is the CIA side. The role of doctors in torture during the War on Terror has been pretty well excavated on the Defense Department side, but the CIA [has some exemptions] from Freedom of Information Act requests, so that’s remained hidden. Essentially the doctors and psychologists were built in to the entire torture system. They weren’t simply bystanders who were called in to respond when the system went off the rails. Some doctors apparently protested this. But they kept their protests inside [the CIA], they never went outside, which they should have done when they saw these types of abuses.

 

In general, doctors in torture have a couple roles. Number one, they design methods of torture that do not leave scars. For example, the so-called “rectal feeding” which is actually a medieval technique in which the intestines are inflated with a viscous material to cause intestinal pain. The docs are also involved in making sure that the prisoners who weren’t supposed to die didn’t die. The third thing doctors do is they falsify medical records and death certificates to conceal the injuries of torture. [Ed.: Miles has written on this in the context of Abu Ghraib.]

Beck: When we’re talking about how integral it was, is the medical knowledge that doctors bring to these operations something interrogation programs could not do without? If every doctor in the world refused to participate, would they be out of luck?

Miles: There are two answers to this question. One is, doctors get the prisoners that the Red Cross never sees. So in a sense doctors are frontline human-rights monitors who get into places where regular human rights groups can’t go. Number two, there are a set of professional codes, that are endorsed by the American Medical Association and the World Medical Association, that describe doctor’s duties not only to avoid participating in torture, directly or indirectly, but also a duty to document it and to report it, going outside the chain of command if necessary.

As human rights groups have put additional pressure on regimes around the world with regard to torture, regimes that are responsive to human rights pressure want to use torture that doesn’t leave scars. So they prefer methods like asphyxiation, isolation, cramming people in small boxes, white rooms with loud noises, because it just destroys people psychologically. Whereas regimes like Assad’s regime [in Syria] don’t really care if there are scars. So there is no role for medicine in that respect in an Assad-type regime or in North Korea’s regime.

“Doctors play a critical role in torture in regimes that don’t want to leave scars, and that includes the United States.”

Beck: So really the doctors become more important in places like the U.S. where if things like this got out, people would pressure the government?

Miles: Yes, doctors play a critical role in torture in regimes that don’t want to leave scars, and that includes the United States.

 

Beck: Why would people use medical knowledge and expertise learned to heal people for the opposite purpose?

Miles: It’s pretty interesting, I’m writing a book on just that question. The docs who get involved in this, number one, are careerists. They get involved for rank and career, and the regimes never coerce them, or extremely rarely coerce them. Instead what happens is the regimes treat them as some kind of elite. The docs are generally not sadists. This is not the stuff of Saw, for example. They go along with the dominant political theme of the prison: “These are our enemies and we gotta squeeze them for the information.” The thing that’s so interesting is that there is research showing that force of interrogation does not work, that it’s counterproductive. These docs seem to be entirely unaware, not only of the ethics codes, but also of the ineffectiveness of these interrogation strategies, that they never mount a protest.

Beck: What is the relationship between doctors and the military in these War on Terror prisons? I’m sure it’s a very different environment in which to be a doctor as opposed to a hospital.

Miles: The CIA doctors were under an office within the CIA called the Office of Medical Services. That’s not military, that’s CIA.

You had situations where doctors were seeing people with fractures, saying they shouldn’t be made to stand, and the people were standing and the docs weren’t  reporting that the medical regime wasn’t being followed. That’s a form of passive complicity. The docs who supervise and say, “Well, what you should do is use medical saline rather than distilled water when you waterboard people so that you don’t make the blood salts dilute,” that’s active participation.

 

For example, if I flood your lungs and throat with just plain tap water, what happens is the sodium in your blood and the potassium in your blood goes down because of the distilled water. So it’s less likely to be lethal if I flood you with medical saline (the kind of stuff you see hanging on IV bags) because then those electrolytes don’t get changed. From the prisoner’s standpoint, he’s still experiencing a drowning.

 

Beck: We’ve talked about the medical side, but what does it mean that there were psychologists who helped design this program? What role does psychology and that knowledge base play?

Miles: Essentially what happened is that the DOD constructed a deal with the American Psychological Association to craft a new code of ethics for War on Terror interrogations.

[Ed.: The APA has authorized an independent review of allegations that it colluded with the George W. Bush administration on torture, and has stated: “In the meantime, the Board again reiterates the Association’s longstanding policy prohibiting any psychologist involvement in torture and cruel, inhuman or degrading treatment or punishment. There are no exceptions to that policy.”]

The military took two psychologists [Mitchell and Jessen] who took the theory oflearned helplessness, and they decided to apply that to interrogation. Learned helplessness as a model for interrogation has been discredited. Learned helplessness works like this. If you shock a dog every time it turns to the right, then it’ll start always turning to the left. If you shock a dog no matter which way it turns, eventually the dog just lies down and takes it. The theory of this interrogation system was, if we punish these prisoners no matter what, they will become helpless and compliant to whatever we want. That is, they’d give up information.

Beck: Do you think these doctors who were involved are going to be held accountable? Whether it’s through the law or through medical licensing boards?

 

Miles: On the website I maintain, I trace the accountability of doctors around the world since the Nazis, not including the Nazis. Accountability has been slowly building throughout the world. There have been a half dozen docs who’ve been subject to licensing-board hearings, and in all cases the licensing board has declined to get involved. These have been War on Terror cases.

There is a law in the U.S. against torture. Theoretically these people could be charged for violations of that federal law. But the DOJ basically said, “Since we all said this was legal at the time, we’re not going to prosecute them.”

The licensing board in these cases has several options. They can suspend a license, which is the typical punishment around the world, or they can revoke the license. So the licensing board hearings here could address that. Significantly, the American Medical Association still hasn’t commented on the Senate report [as of Thursday]. The AMA is not exerting leadership here.

[Ed.: The AMA’s official policy on torture reads, in part: “Physicians must oppose and must not participate in torture for any reason. Participation in torture includes, but is not limited to, providing or withholding any services, substances, or knowledge to facilitate the practice of torture. Physicians must not be present when torture is used or threatened … Physicians may treat prisoners or detainees if doing so is in their best interest, but physicians should not treat individuals to verify their health so that torture can begin or continue.]

 

Beck: Do other countries have different laws or standards of punishment in these cases?

“The doctors and psychologists were built into the interrogational abuses. It wasn’t a matter of turning off protests, it was a matter of a structured system of complicity.”

Miles: Brazil, Chile, Argentina, and Uruguay have punished bunches of doctors. Rwanda punished bunches of doctors. Rwanda probably punished the largest percentage of its physician workforce of any country on the planet. Then you’ve got countries like Great Britain, Guyana, India, Pakistan, Sri Lanka, Greece, and these countries have punished a token number of physicians, one or two, even though the involvement of physicians in torture has been much more widespread.

 

Beck: Are there any other important aspects of this that we haven’t talked about yet?

Miles: The first question I asked when I saw the Abu Ghraib pictures was, “My god, where were the doctors when all this was going on? How did the government turn off the protests from the medical system?” What I discovered instead was that the doctors and psychologists were built into the interrogational abuses. So it wasn’t a matter of turning off their protests, it was a matter of a structured system of complicity. This has greatly harmed the U.S. medical community’s ability to speak on behalf of doctors who are protesting torture around the world.

 

Let me give you a few examples. There was a psychiatrist in Russia, in the Soviet Union, who was pointing out Russia had built psychiatric prisons to punish dissidents. His name was Anatoly Koryagin. He smuggled out a secret paper in a medical journal called The Lancet, and he was immediately sent to [prison]. The medical community in the U.S. and Europe was able to secure his release.

There was a doctor by the name of Pourandarjani in Iran who told of torture in Iranian prisons. But his testimony in Iran happened [in 2009] after the medical abuses in Abu Ghraib were out. [Ed. Pourandarjani died of an alleged heart attack in November 2009—some human rights groups have called his death “suspicious.”]Our ability to be a leader in these areas has huge consequences for people who are doing very dangerous human rights work around the world. And we’ve totally compromised ourselves.

 

 

 

 

How narco tests gave more misses than hits

 

In the last few years, the city police have used narco-analysis and brainmapping tests as a “secret weapon” against suspects in high-profile cases. However, often the results have been less than satisfactory and in some cases have led to major setbacks.

The Mumbai police’s application to conduct narco-analysis on Suraj Pancholi, son of Bollywoodactor Aditya Pancholi, who was arrested for allegedly abetting actor Jiah Khan’s suicide, has once again brought attention on the much-abused test.

“At times, the police do resort to means, like the narco-analysis tests, as a shortcut to investigation or as a convenient tool to get their way. This should not be encouraged,” said criminal lawyer Majeed Memon. “The facts of this case [Jiah’s suicide] do not justify subjecting the accused [Suraj] to narco-analysis test and is undesirable.”

 

A narco-analysis test involves using sedatives, such as sodium pentothal or sodium amytal, to put a person in hypnotic-like state, rendering him unable to lie. The person then answers only specific questions and the answers are taken to be spontaneous. A narco-analysis test report can only be used as supportive evidence; it is not admissible as standalone evidence in court.

One narco-analysis test that had left the state government red-faced was that of Abdul Karim Telgi, main accused in the fake stamp paper scam case. During the test in 2004, Telgi named leading Maharashtra politicians and of making payments to them. Then deputy chief ministerChhagan Bhujbal had to quit following the revelations. But investigations could not corroborate his statements.

More recently, the police’s efforts to use narco tests to make breakthroughs in serious offences, such as rape and murder, have come a cropper.

Mohammed Ajmeri Sheikh, who was accused of raping and murdering a nine-year-old girl in Kurla in 2010, was subjected to the test with the hope that he would confess to raping and killing other girls in the areas, but the police got no leads. They were unable to file a chargesheet within the stipulated 90 days and Ajmeri got bail.

The other high-profile case involved Vijay Palande arrested for the murder of Delhi businessman Arun Tikku in Lokhandwala in 2012. Palande reportedly confessed to killing aspiring producer Karan Kakkar and dumping the body at Khumbarli ghat near Chiplun. There they stumbled upon the skeletal remains of an identified body. The narco test on Palande remained inconclusive and the crime branch could not identify the skeletal remains.

In other parts of the country, too, probes using narco tests have not been always successful. The results of the tests on Noida dentists Dr Ramesh Talwar and his wife Nupur in connection with the murders of their daughter Aarushi and domestic help were inconclusive.In Hyderabad, the police were unable to extract any information from Abdul Kaleem and Imran Khan, alleged associates of HUJI leaders Abu Hamza and Shahed alias Bilal, accused in the August 2007 twin blasts in that city.

Narco analysis misses!

2012 – Vijay Palande case

Police subject Vijay Palande, an alleged serial killer”, to narco analysis test.

Status: Tests were inconclusive as the police were unable to find the identity of a body they found in Kumbharli ghat.

2010 – Kurla serial rape and murder cases

Police conduct narco analysis tests on Mohammad Ajmeri Shaikh, an accused in the rape and murder of minor girls in Kurla.

Status: Test fail to yield any positive results for the police. Police fail to file chargesheet within the stipulated 90 days and the court releases Ajmeri on bail.

2010 – Arushi murder case.

Narco analysis was conducted on Dr. Rajesh Talwar and his wife Nupur in the Arushi murder case.

Status: The tests were inconclusive and the trial in the case is currently stayed.

2007 – Hyderabad twin blasts

Abdul Kaleem and Imran Khan, accused in the Hyderabad twin blasts case undergo narco analysis tests.

Status: Police fail to get any breakthrough in investigations or suspected connection with the 2005 terror attack on the Indian Institute of Science shootout

2004 – Telgi case

Abdul Karim telgi, the main accused in the multi crore fake stamp scam case was administered narcoanalysis tests. During his tests, Telgi had made allegations against some top politicians from Maharashtra.

Status: While Telgi was convicted in some of the cases, the allegations against the politicians came to naught.

 

Is Narco Analysis a Reliable Science? – Present Legal Scenario In India.

 

The term Narco-Analysis is derived from the Greek word narkç (meaning “anesthesia” or “torpor”) and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. The term narco-analysis was coined by Horseley. Narco analysis first reached the mainstream in 1922, when Robert House, a Texas obstetrician used the drug scopolamine on two prisoners.

 

The search for effective aids to interrogation is probably as old as man’s need to obtain information from an uncooperative source and as persistent as his impatience to shortcut any tortuous path. In the annals of police investigation, physical coercion has at times been substituted for painstaking and time consuming inquiry in the belief that direct methods produce quick results. Development of new tools of investigation has led to the emergence of scientific tools of interrogation like the narco analysis test. Such tests are a result of advances in science but they often raise doubts regarding basic human rights and also about their reliability. Legal questions are raised about their validity with some upholding its validity in the light of legal principles and others rejecting it as a blatant violation of constitutional provisions.

 

A Brief Outline of The Narco Analysis Test-

The narco analysis test is conducted by mixing 3 grams of Sodium Pentothal or Sodium Amytal dissolved in 3000 ml of distilled water. Narco Test refers to the practice of administering barbiturates or certain other chemical substances, most often Pentothal Sodium, to lower a subject’s inhibitions, in the hope that the subject will more freely share information and feelings. A person is able to lie by using his imagination. In the narco Analysis Test, the subject’s inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like state efforts are made to obtain “probative truth” about the crime. Experts inject a subject with hypnotics like Sodium Pentothal or Sodium Amytal under the controlled circumstances of the laboratory. The dose is dependent on the person’s sex, age, health and physical condition.

 

The subject which is put in a state of Hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions. The subject is not in a position to speak up on his own but can answer specific but simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers.

 

Wrong dose can send the subject into coma or even result in death. The rate of administration is controlled to drive the accused slowly into a hypnotic trance. The effect of the bio-molecules on the bio-activity of an individual is evident as the drug depresses the central nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated by the investigating agencies in the presence of the doctors. The revelations made during this stage are recorded both in video and audio cassettes. The report prepared by the experts is what is used in the process of collecting evidence. This procedure is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.

 

Other associated truth finding tests-

Apart from narco test there are also other two kinds of tests which are popularly used on the convict for extraction of truth, these are-

I. Polygraph or lie Detection Test:

It is an examination, which is based on an assumption that there is an interaction between the mind and body and is conducted by various components or the sensors of a polygraph machine, which are attached to the body of the person who is interrogated by the expert. The machine records the blood pressure, pulse rate and respiration and muscle movements. Polygraph test is conducted in three phases- a pretest interview, chart recording and diagnosis. The examiner (a clinical or criminal psychologist) prepares a set of test questions depending upon the relevant information about the case provided by the investigating officer, such as the criminal charges against the person and statements made by the suspect. The subject is questioned and the reactions are measured. A baseline is established by asking questions whose answers the investigators know. Lying by a suspect is accompanied by specific, perceptible physiological and behavioural changes and the sensors and a wave pattern in the graph expose this. Deviation from the baseline is taken as a sign of lie. All these reactions are corroborated with other evidence gathered. The polygraph test was among the first scientific tests to be used by the interrogators.

 

It was Keeler who further refined the polygraph machine by adding a Psycho-galvanometer to record the electrical resistance of the skin.

 

II. P300 or the Brain Mapping Test:

This test was developed and patented in 1995 by neurologist Dr. Lawrence A. Farwell, Director and Chief Scientist “Brain Wave Science”, IOWA. In this method, called the “Brain-wave finger printing”; the accused is first interviewed and interrogated to find out whether he is concealing any information. Then sensors are attached to the subject’s head and the person is seated before a computer monitor. He is then shown certain images or made to hear certain sounds. The sensors monitor electrical activity in the brain and register P300 waves, which are generated only if the subject has connection with the stimulus i.e. picture or sound. The subject is not asked any questions. Dr. Farwell has published that a MERMER (Memory and Encoding Related Multifaceted Electro Encephalographic Response) is initiated in the accused when his brain recognizes noteworthy information pertaining to the crime. These stimuli are called the “target stimuli”. In a nutshell, Brain finger printing test matches information stored in the brain with information from the crime scene. Studies have shown that an innocent suspect’s brain would not have stored or recorded certain information, which an actual perpetrator’s brain would have stored. In USA, the FBI has been making use of “Brain mapping technique” to convict criminals.

 

Narco Analysis in India-

A few democratic countries, India most notably, still continue to use narco analysis. This has come under increasing criticism from the public and the media in that country. Narco analysis is not openly permitted for investigative purposes in most developed and/or democratic countries. In India, the narco analysis test is done by a team comprising of an anesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer, and supporting nursing staff. The forensic psychologist will prepare the report about the revelations, which will be accompanied by a compact disc of audio-video recordings. The strength of the revelations, if necessary, is further verified by subjecting the person to polygraph and brain mapping tests.

 

Narco analysis is steadily being mainstreamed into investigations, court hearings, and laboratories in India. However, it raises serious scientific, legal, and ethical questions. These need to be addressed urgently before the practice spreads further. Narco analysis has become an increasingly, perhaps alarmingly, common term in India. It refers to the process of psychotherapy conducted on a subject by inducing a sleep-like state with the aid of barbiturates or other drugs. In a spate of high profile cases, such as those of the Nithari killers and the Mumbai train blasts, suspects have been whisked away to undergo an interview drugged with the barbiturate sodium pentothal.

 

Narco Analysis from Constitutional & Legal Stand Points-

The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3). It deals with the privilege against self-incrimination. It has its equivalents in the Magna Carta, the Talmud, and the law of almost every civilized country. The privilege against `self incrimination is a fundamental canon of Common law criminal jurisprudence.

 

The characteristic features of this principle are-

-The accused is presumed to be innocent,

-That it is for the prosecution to establish his guilt, and

-That 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.

 

Art. 20(3) which embody this privilege reads, “No person accused of any offence shall be compelled to be a witness against himself”.

 

On analysis, this provision will be found to contain the following components:

-It is a right available to a person “accused of an offence”;

-It is a protection against such “compulsion” “to be a witness”;

-It is a protection against such “compulsion” resulting in his giving evidence against himself.

 

All the three ingredients must necessarily coexist before the protection of Art 20(3) can be claimed. If any of these ingredients is missing, Art. 20(3) cannot be invoked.

 

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. 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 hypnotic state of mind) it should stand to be rejected by the court. The main issue thus is the question of its admissibility as a scientific technique in investigations and its ultimate admissibility in court as forensic evidence.

 

Section 45 of the Indian Evidence Act, 1872 does allow experts’ opinions in certain cases. It reads:

“When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impression, the opinions upon that point or persons especially skilled in such foreign law, or of science, or art, or as to identity of handwriting or finger impressions are relevant.”

However this section is silent on other aspects of forensic evidence that can be admissible in court in criminal proceedings.

 

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 self-incrimination. 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 vs 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.

 

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.

 

Some Notable Events & Cases of Narco Analysis in India-

I. In a 2006 judgment ( Dinesh Dalmia v State ), the Madras High Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said 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.” There are two fallacies in this reasoning. First, if narco analysis is all that it is made out to be by the Bangalore FSL, the accused will involuntarily answer questions posed to him during the interview. The second fallacy is that it is incorrect to say that the accused is merely taken to the lab against his will. He is then injected with substances. The breaking of one’s silence, at the time it is broken, is always technically `voluntary.’ Similarly, it can be argued that after being subject to electric shocks, a subject `quite voluntarily’ divulges information. But the act or threat of violence is where the element of coercion is housed. In narco analysis, the drug contained in the syringe is the element of compulsion. The rest is technically voluntary.

 

II. In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: “No person accused of any offence shall be compelled to be a witness against himself.” Statements made under narco analysis are not admissible in evidence. However, recoveries resulting from such drugged interviews are admissible as corroborative evidence. This is, arguably, a roundabout way to subverting the right to silence — acquiring the information on where to find the weapon from the subject when, in his right senses, he would not turn witness against himself. Arguments have been made that narco analysis constitutes mental torture. It works by inhibiting the nervous system and thus lowering the subject’s inhibitions. It is not difficult to interpret this as a physical violation of an individual’s mind-space. The State police departments are responsible for generating demand for the process. The decision to conduct narco analysis is usually made by the Superintendent of Police or the Deputy Inspector General handling a case.

 

A high-ranking official in the Karnataka Police told The Hindu that police departments in India have poor skills when it comes to collection, collation, and presentation of evidence before the courts. Consequently, when there is enormous pressure on a police department to solve a case, sending suspects to narco analysis not only buys time but also gives the impression that something concrete has been done about the case.

 

III. 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. The bench, which also included Justice R.V. Raveendran and Justice J.M. Panchal, heard the arguments by counsel of various people, including Santokhben Jadeja from Gujarat, popularly known as ‘Godmother’, and some accomplices of fake stamp paper case accused Abdul Karim Telgi. 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.

 

During the arguments, Vahanvati justified the use of these three tests, saying they have the legal mandate under Section 53 of the Criminal Procedure Code (CrPC), which lists a host of various modern techniques like DNA fingerprinting and collection of blood samples as perfectly legal tools to probe a crime. He said the term ‘such other tests’ occurring in the explanatory note of the Section 53 includes these three tests too.

 

‘If these tests are properly considered to be steps in the aid of investigation and not for obtaining incrimination statements, there is no constitutional infirmity whatsoever,’ said Vahanvati. ‘These tests are scientific methods in furtherance of investigation. All these tests are considered to be the part of the process of collection of some subsequent evidence.

 

‘These tests may provide some clues to the investigative agency to collect some evidence but the statements given by the accused against themselves during these tests are not of any evidentiary value,’ clarified the law officer.

 

But Dave during his arguments, contended that parliament never intended to include these tests as tools for probe as Section 53 was last amended in 2005, when a list of various modern scientific techniques was included in it as legal tools for investigation. Dave also contended that the use of these three tests as tools of investigation is not validated by Article 20(3) of the constitution, which says: ‘No person accused of any offence shall be compelled to be a witness against himself.’

 

IV. In Shashi murder case, Court allows narco-analysis. Vijaysen Yadav, the main accused in the disappearance and murder case of Faizabad law student Shashi, has gone through polygraph and narco-analysis test from January 12 to 26. Faizabad Chief Judicial Magistrate Shailesh Tiwari permitted the police on Friday to conduct the tests at the Central Forensic Laboratory in Bangalore.

 

In his order, the CJM said the tests on Vijaysen will be conducted in judicial custody and prohibited investigating Officer Sharat Chandra Pandey from intervening in any matter during the process of tests. The court also asked him not to accompany Vijaysen to Bangalore.

 

V. The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra, 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 as mentioned above, allowing the SIT to conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul Karim Telgi. The verdict 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 any “statement” being made and the statement made under narco analysis was not admissible in evidence during trial. The judgment also held that these tests involve “minimal bodily harm”.

 

VI. Narco-analysis of Moninder Singh Pandher, had started on Tuesday, January 09, The narco-analysis test of the prime accused in the Noida serial murder case Moninder Singh Pandher was conducted at the Directorate of Forensic Laboratory. Pandher and Koli have been accused of serial killing of women and children in Nithari village, in Noida, Uttar Pradesh. The Nodia police had brought Pandher and his servant Surendra Koli to DFS on January 5 for forensic tests. The tests are expected to go on for approximately eight hours, the sources said.

 

VII. A court in Kerala recently pronounced that no court order is required to do a narco analysis, Disposing of a petition filed by the CBI seeking permission of the court, the magistrate said 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.

 

The Degree of Admission of These Truth Finding Tests in Court-

Lawyers are divided on whether the results of Narco Analysis and P300 tests are admissible as evidence in courts. “Confessions made by a semi-conscious person is not admissible in court. 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 assess its admissibility,” advocate P. R Vakil told rediff.com. “Under certain circumstance, a person may hold a certain belief. By repeatedly thinking about an issue in a particular way, he begins to believe that what he is thinking is right. But it need not necessarily be the truth,” Vakil explained.” Results of such tests can be used to get admissible evidence, can be collaborated with other evidence or to support other evidence. But if the result of this test is not admitted in a court, it cannot be used to support any other evidence obtained the course of routine investigation.”

 

Criminal lawyer Majeed Memon said, “If the courts give permission to conduct these tests, then only it can decide the admissibility of the test results and other related evidence. Such reports can be used as evidence or to support other evidence.” Another criminal lawyer Sham Keswani has a different view. “Such tests don’t have any legal validity. They can only assist the police investigation.” But, in case a person is not affected by the chemical, he might take some wrong names (to mislead investigators). The results of such tests can be used to support other evidence,” he said.

 

Conclusion-

Law is a living process, which changes according to the changes in society, science, ethics and so on. 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. The criminal justice system should be based on just and equitable principles. The issue of using narco analysis test as a tool of interrogation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be clearer in the near future. In a situation where narco analysis is gaining judicial acceptances and supports despite being an “unreliable & doubtful” science, we have to seroiusly rethink about its legal and constitutional validity from human rights perspective.

 

Violence and the ethical responsibility of the medical profession

Amar Jesani

 

 

Prof. Upendra Baxi, a well known expert on law and a former vice chancellor of Delhi and South Gujarat universities, in his comments on Women’s Studies in the ICSSR Newsletter seven years back, made some incisive and disturbing comments on the coverage of violence in social science discourses in India. “Mainstream social sciences in India have altogether ignored the fact that India is a very violent society. There do not exist even pre- theoretical discourses on violence in India. Compared with the practice of violence in India, there is a total denial of discourse on violence.”1

Health care professionals have fared even worse than social scientists.

The concern for violence is conspicuous by its virtual absence in medical discourses. The special medical needs and rehabilitation of victims and survivors of violence are hardly ever discussed by doctors. Is this because health care workers do not come in contact with the victims and survivors of violence? The answer is a categoricalno. Violence invariably inflicts physical or psychological trauma and in any violence, the victims and survivors come in contact with health care workers, the last and extreme contact being established during autopsies on victims of violence. The apathy of medical personnel is all the more disturbing simply because of the many professions in our country, medicine has the greatest claim to nobility, compassion, humanity, rationality and scientific attitudes.

Unlike some extremely backward countries, we have nearly a million (9,27,624 in 1991) formally trained doctors, 42% of whom are trained in modern medicine – a ratio of one doctor for less than a thousand persons in the country as whole and one doctor for less than five hundred in the urban areas. An estimated 85% of all trained doctors work in the private sector3. Yet, the conscious response of the profession to one of the bigger epidemics of violence in recent times in our country has been grossly inadequate. We have either shown plain indifference or clumsy and ad hoc crisis management when faced with violence. This does not auger well for a profession claiming to have scientific basis for its practice. The implied failure in discharging social responsibility raises ethical questions for the profession at large in the country.

Violence and the medical profession
The science of medicine incorporates sociological and epidemiological understanding. Medicine, and for that matter any science, not geared to real social andepidemiological issues loses its humanitarian content. The violence described and documented by voluntary groups is not that by common criminals. The violence covered here includes the deprivation of human and democratic rights, is associated with social and political mobilisation, is often inflicted on helpless, oppressed, unarmed or innocent persons and has notable ideological underpinnings. There are strong, extreme and sometimes genuine differences within the social groups on the attitude society should take on the subject. One finds strong defenders (and opponents) of third degree methods, an euphesism for torture, almost routinely employed by the police. Similar divergence prevails in debates on caste, communal, gender and other forms of violence.

One’s social position and ideological orientation, rather than the fact of the violence and the plight of victims and survivors, seem to determine the stand taken on violence. Of course there is also a big segment that has either become emotionally numb due from excessive exposure to violence or is indifferent as at present it is not directly affected.

Such trends prevail in the medical profession as well. To what extent is the attitude of doctors to violence shaped by their social positions and ideological orientation? There has been very little research on doctors’ attitudes on violence and the extent to which individual biases get reflected in medical practice. Some indication on what is happening at the ground level within the profession is available from the recent reports of various local, national and international groups. These reports were prepared for specific purposes and their findings on the acts of commission and omission cannot and should not be generalised. Nevertheless, they do serve as pointers. The few examples given below on postmortems and torture and rape are purposefully selected by me in order to illustrate issues. I understand that there is always the other side to every story.

(a) Autopsy: The way autopsies are conducted, findings recorded and access to reports denied has been a bone of contention for long. There have been reports in the press about the pressure exerted on doctors by the police to give findings favorable to them. The death of Dayal Singh in police custody made the Resident Doctors’ Association of All India Institute of Medical Sciences (AIIMS) protest against such pressure. This is referred to in Amnesty International’s (AI) report titled Torture, Rape and Deaths in Police Custody4. The autopsy reports on two nuns murdered in a Bombay suburb and the role of doctors in unscientific inter F retation of its findings is also fresh in many minds5. On study of autopsy reports on victims dying in police custody and on so- called deaths during ‘encounters’ in the past few years, I found several disturbing issues which have grave implications on the unethical behavior of doctors conducting autopsies:

(1) Autopsies are generally conducted by police surgeons in police hospitals to which lay people and other doctors have no access. An independent medical audit of work being done there is unheard of. This situation is neither conducive to good science nor to ethics.

(2) A study of autopsy reports (no such study is available, hence the need for it) of victims of violence would probably show incomplete and unscientific documentation. The Supreme Court had to order, in 1989, that all postmortem examinations held at AIIMS be standardised. On making inquiries I learn that this Court order has remained inadequately implemented.

There is a crying need to adopt (with suitable modifications) the United Nations’ manual on the effective prevention and investigation of extralegal, arbitrary and summary executions.! Such routine, standardised and scientific investigation by the medical profession would go a long way in checking arbitrary killings and in upholding medical impartiality and neutrality’

(3) There is also need to make the whole process more accessible to other doctors and the public. The profession could allow a doctor appointed by the relatives of the deceased to remain present at autopsy. They should make the official report available to the family doctor and the patient’s relatives. This is an issue on which the profession can easily assert its authority.

(b) Torture and rape: There have been numerous official denials that the so- called third degree methods of interrogation or torture are practiced by our police and security personnel. The evidence accumulated so far does not support such a claim. Some of the retired police officers, reared in the old school of correct policing, have publicly criticised the ‘new methods of policing’ which condone the use of torture, illegal detention and tampering with records and in worst cases even condone execution of hard core criminals by police officers7.

AI’s report (1992) cites 13 cases of custody deaths due to torture in the period 1985- 89 in Maharashtra. A Bombay newspaper reported a study by the prestigious Karve Institute of Social Work, Pune giving the toll of custody deaths in Maharashtra in 1980- 89 as 1558. On inquiry I find that of these 155 deaths, 102 had taken place in the five year period 1985- 89 for which AI had reported only 13. On analysing the causes of the 155 custody deaths, I find that only 9.7% (15) were admitted as due to police action, 44.5% (69) were attributed to suicide or acts of the accused, 7% (11) to acts of the public, 22.6% (35) to disease and illness. 13.6% (21) were termed natural deaths and in 2.6% (4) the cause was not known or record not available. I was astonished to learn some of specific causes listed: alcohol consumption (9 cases), hanging (45), jumped in well (3), jumped under the train (2), jumped under the awtorickshaw (3), jumped under the bus (l), fell from the cot (l), skin disease (l), giddiness (l), unconsciousness (1) and so on. Given the norm that every death in custody ought to be investigated- and proper autopsy done, such causes are not only incomprehensible but also lead to suspicion about a larger proportion of deaths due to torture.

In an investigation of death in police custody in Bombay, I, along with two journalists and a lawyer, found that the young victim accused of petty theft was in the course of interrogation brought to the hospital in a serious condition with, as per hospital records, inflicted injuries on his wrists and thighs typical of torture, bloody vomiting, pain in the region around kidney etc. He was given some treatment and asked to go back to his cell by the doctor. It was also found that the doctor had taken case history and examined’his patient in the presence of the police officer who had accompanied the victim.

The doctor did not consider the presence of the police as violating the doctor- patient relationship. He insisted that he did not suspect torture as the victim never reported it to him. The victim died in his cell.

Similar findings were made by us in an investigation of a victim of gang rape wherein, inspite of the visible signs of injuries around the vagina, which could make any medical person suspect rape, the male doctor turned away the patient after treating her injuries simply because the woman could not tell him that she was raped’. The woman had reported rape to the nurse on duty but could not communicate this to the male doctor.

In another case of custodial gang rape and torture of a tribal woman by police in Gujarat, the commission of inquiry constituted by the Supreme Court found that two doctors at the government hospital were guilty of shielding the policemen and issuing a false certificate10

These examples only represent the tip of the iceberg. Doctors who come in contact with survivors and victims of violence are not always conscious accomplices in ignoring or covering up the cases. I have been given the following reasons for non- reporting and conspicuous silence by medical doctors on torture and rape:

(1) A section of doctors involved are plainly ignorant about this aspect of medical work. If it is true that it never occurs to a doctor that a policeman should not be allowed to remain present during the doctor- patient interaction, or that certain signs and symptoms should make him/ her suspicious of possible torture, it shows crass ignorance in the profession and a grave lacuna in their training.

(2) Another section is indifferent to the plight of sufferer due to their own social biases against the victims and survivors. Such indifference is also produced by social pressure to conform to the dominant belief. In cases of torture inflicted on persons labeled as terrorists, I have found doctors faithfully treating the injuries of the victims but showing great reluctance in mentioning torture due to the fear of being seen as opposed to the state’s efforts at fighting terrorism and separatism.

(3) A third section simply believes that by being in the employment of the government, the police department or the prison, they are bound by the orders of their superiors and feel that the code of their service does not allow them to ‘blow the whistle’.

The profession has failed to take the unequivocal position that when a doctor has to choose between an administrative order and professional ethics, the latter must prevail. The profession has also failed to protest when doctors are transferred as punishment for cri ticising gimmicky and unscientific measures taken by the authorities during epidemics, or when security forces harass and raid hospitals, interfering with the treatment of patients as in Kashmir11. Such lack of collective assertion of professional independence and neutrality on crucial issues has left individual doctors defenseless, cynical and by default subservient to the authorities.

(4) Another reason for doctors’ apathy to these issues is their unwillingness to ‘get involved’. Many remark, “We are doctors. We treat illness. We are not interested in torture or rape.” This is both inadequate science and poor ethics.

Treatment, rehabilitation and documentation
Recognition of the fact that the reported instances of torture represent only a tip of the iceberg emphasises the need to document the problem in a systematic manner. There is a need to put together experiences in treatment and rehabilitation of such victims, create a clearing house for such information to be disseminated among interested professionals, and thus systematise corrective medical intervention.

This would also provide precious information on the extent of problem encountered, the individuals and agencies (state, terrorists, armed groups, gangs) involved in torture, type of people affected, type of torture methods used and so on. This information in turn would sensitise the profession and make it easier for medical associations and groups to successfully campaign for rooting out conscious or unconscious complicity of doctors in torture or its cover up. Such information will also sensitise other professionals in the media, law, social work etc. to play active and meaningful roles in creating public awareness, in punishing the guilty and in rehabilitating survivors.

Code of medical ethics and torture
The code laid down by the Medical Council of India is a good but greatly neglected document. Despite debates about commercialisation and sensational revelations in the press on various allegedly unethical practices by doctors, very little has been done by the medical associations to popularise and enforce this code.

Although the principles enunciated in the code are universal and exhort doctors to refrain from participating or colluding in anything that harms the individual, there is a need to make them specific and directive, particularly in relation to the victims and survivors of violence. This could be easily done by incorporation of the international declaration on the subject in our code.

 

3rd Degree Torture by Police in India

http://sites.google.com/site/sosevoiceforjustice/3rd-degree-torture-by-police ,

 

 

 


Editorial : NARCO-ANALYSIS – RIGHT OR WRONG?


The advances in science must be used by the police to find out the
truth, to solve the mysteries of the crimes. It is the better option
for both investigation / interrogation than the classical
interrogation method involving third degree torture, where in the
accused breaks -down & blurts out the truth, usually, in most of the
cases innocents unable to bear the torture confesses to the crimes
they have not at all committed. The scientific tools of interrogation
namely Narco-analysis . Brain mapping & polygraph Tests must be made
mandatory for interrogation. The perpetrators of third degree torture
i.e. Police Military personnel must be punished severelly. Not just
on innocents, even on proven criminals police have no rights to
torture. It is grossly inhuman & illegal.


At present, there is certain bias in the usage of scientific
interrogation tools:-


1) Generally everybody is afraid of police & their corrupt practices.
Even innocent persons are frightened of false fix-ups & third degree
torture by police. This fear shows up in their heightened anxiety
level, changes in their blood pressure, respiration, heart-beat etc.,
There are chances of misinterpreting this as the “Fear of a criminal
of being caught”


2) These scientific tools are in the hands of police only. Therefore
it is biased towards the police or prosecution in a case. Forensic
science labs where these scientific interrogations are conducted are
under the control of Police department . Fundamental objective of
police is to prove their case, the prosecutions stand point rather
than finding out the truth. Sometimes, the stand points of
prosecution police are influenced by caste, political & monetary
considerations. This bias reflects in the preparation of
the “Questionnaire by the Interrogator” The interrogator if he wants
to bring out a negative image of the accused before the court, he
prepares the questionnaire such that only negative issues come out as
the answers. If the accused has got political patronage & has paid
hefty bribe to the police questionnaire is prepared such as to bring
out a positive image, to highlight innocent image of the accused.
Leaving out all other related questions, which brings out truth, a
negative image of the accused. The police are the one who decide the
fate, destiny of the accused.


3) Every human being has two personalities with in his sub –
conscious mind one personality is evil, selfish & craves for all
material pleasures. The other personality is good , humane & sociable
one. Whenever an issue comes up before a human being , whenever a
human being sees, reads or hears a subject two opinions are
formulated about it by him. One by his evil, selfish ego the other by
his good, humane self .A perfect human being, a social being is one
who controls his mind, contains the evil influences of his selfish
self and follows the guidance of his good self. This readily
expresses itself through good humane social actions. A criminal is
one who does not have control over his mind and acts according to the
evil guidance of the selfish self.


There are chances of mis-interpretation during scientific
interrogation . If you expose only evil self you will get a negative
image or else if you expose only the good self you will get a
positive image of the accused. For a balanced view, you have to see
the both evil-self & good self of the accused together with his past
& present actions.


4) At present only it is the prosecution who can use these scientific
interrogation facilities, but not the defence.
In the fake stamp paper scam during Narco Analysis , king pin Mr.
Karim Lala Telgi blurted out the truth – gave out the names of his
VVIP accomplices, Police accomplices, his business details, so far so
good.

 


Hereby I do request you to order both the union government & all
state governments :-


1) To keep the forensic science laboratories under the control of
autonomous bodies like National Human Rights Commission.


2) To make the scientific facilities of interrogation available for
both the prosecution & the defence of course, for a fee.


3) To enact legislation to subject the corrupt investigating officer,
corrupt public prosecutor, corrupt presiding judge of the case, etc.,
to scientific interrogations, by both the defence & prosecution.


4) To factor in the allowances for the natural fear for police (for
their corrupt, ruthless, devil face)


5) To create an unbiased impartial atmosphere free of fear or favour
to conduct the scientific interrogation.


6) To enact guidelines for scientific interrogation for framing
questions to bring out both good & evil self in the sub conscious to
have a balanced view of the man under question together with his past
& present actions .


7) To make it mandatory for all cases including VVIPs .

 


In various cases scams, involving VVIPs cases drag on for years.
Public money is wasted through waste of deliberations of the house (
Parliament, Legislative Assembly), Waste through constitution of
Parliamentary committees , Judicial commissions, why not all those
VVIPs accused of involvement in scams subjected to tests like Narco
analysis, poly graph, Brain finger printing etc., So that L K Advani
& Murali Manohar Joshi will tell about Babri Masjid demolition, Sonia
gandhi family will tell about Bofors, George Fernandese about
Tehelka, Raja about  telecom tenders, Lallo Prasad Yadav about fodder scam. The
scam tainted VVIP list goes on. Why not these VVIPs are subjected to
scientific interrogation with unbiased questionnaire?

 

Jai Hind. Vande Mataram.

 

Your’s sincerely ,

 

Nagaraj.M.R.

 

 

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FORENSIC SCIENCE LABORATORY   BANGALORE  INDIA

 

 

BANGALORE: Once the first choice for narcoanalysis tests, the Forensic Science Laboratory in Bangalore is now creaking under the burden of 300 pending requisitions and the absence of an expert to conduct them.

So far, Bangalore FSL has conducted over 900 narcoanalysis tests, which were mostly ordered by various courts across the country.

These have yielded some positive results and in at least 12 judgments of various high courts referred to the FSL narcoanalysis test reports.

In a recent judgment in the Ajay Kumar Pal versus State of Jharkhand on March 16, the Supreme Court held that the results of polygraph, narcoanalysis, BEOSP/ brain mapping and fingerprinting have been based as evidence to deduce the term ‘the case of rarest of rare’ to uphold the death sentence.

The services of the Bangalore FSL have been roped in to check Simi activists in Karnataka, blasts on Mumbai trains, in Hyderabad and Malegaon. From Abdul Kareem Telgi to underworld don Abu Salem and suspects in the Arushi murder case which stunned Delhi and ViniVinc Sastry are some of the high-profile cases in which narcoanalysis was done by Bangalore FSL.

However, things began going wrong during the trial of the Sister Abhaya case in Kerala. The CBI charged that the narcoanalysis report was tampered with and fingers began to be pointed at FSL officials.
FSL Assistant Director Dr S Malini, who used to conduct narcoanalysis, also ran into trouble over her date of birth in certificates as well as the procedure by which she was appointed. She was discharged the duty and the post has been vacant since then.

FSL director Dr Mohan told TOI that the FSL would get consent from the accused before conducting the tests. “We seek court permission and follow the guidelines laid down by the National Human Rights Commission also. However, we do not have experts now and therefore don’t conduct these tests,” he added.

 

 

Fake documents: Govt sacks FSL’s Dr Malini

 

Bangalore: Bowing to opposition demand in the legislative council, the state government, on Wednesday, sacked Dr S Malini, assistant director of the Forensic Science Laboratory here, on charges of submitting fake documents that furnished wrong information about her caste, and educational qualification for joining the service.

Janata Dal (Seculer) leader MC Nanaiah, who raised the issue in the council, demanded the government to immediately sack Dr Malini from service.

He stated that Malini had not only submitted false caste records, but also fakecertificates of educational qualification, including SSLC marks card.

She is also accused of tampering with documents and brain mapping reports in Sister Abhaya murder case of Kerala.

Nanaiah even drew home minister VS Acharya’s attention to a December 26, 2008 letter written by former director-general of police R Sri Kumar to the principal secretary, home department, to discharge Dr Malini from service.

Butno action was taken as Dr Malini was protected by influential persons in the ruling BJP government, Nanaiah alleged.

In his letter, the former DGP had accused Dr Malini of leaking narco test results conducted on Al Badr extremist Fahad Ali to the media. He also accused her of professional impropriety.

However, a probe by the Corps of Detectives could not establish any impropriety on the part of Dr Malini.

Earlier, questions were also raised on her recruitment through a special drive.

 

 

 

CBI To grill Dr.Malini of FSL Bangalore

 

Kochi, Friday, January 30, 2009: The CBI sleuths have informed the Kerala High Cout that they will once again interrogate Dr.S. Malini Assistant Director of the Forensic Science Laboratory (FSL), Bangalore once again to clear the air regarding the narco –analysis CDs.

Earlier, the investigating agency had alleged that narco analysis expert, Dr Malini who conducted narco test on three persons Fr Thomas Kutty, Fr Joseph Puttrukail and Sister Steffi in October 2007 had tampered with the CDs containing the video graphed procedure of the tests conducted on suspects in Sister Abhaya murder case. The agency in its submission said that she had tampered with the CDs twice on October 22, 2007 and on October 24, 2007. The agency said that a CD given by the FSL, Bangalore had three reports of which two were nowhere connected with Sister Abhaya’s murder. However the Court on August 5, 2008 had communicated to Director FSL, Bangalore to send the CDs of the entire procedure to Satheesachandran, Registrar General, Kerala High Court.

However the Court on August 5, 2008 had communicated to Director FSL, Bangalore to send the CDs of the entire procedure to Satheesachandran, Registrar General, Kerala High Court after which the Court had cleared Dr Malini once again accusing the CBI of misleading the murder case.

 

 

Manual Scavenging: Must Be Eradicated Right Away

By Ram Puniyani

Indian society is riddled with many evil practices, some of which tantamount to atrocity on one or other section of the dalit/deprived sections of society. One such atrocity is the manual scavenging; the removal of human excreta by humans, with the minimum aid of brooms, metal scarpers and buckets. This practice was officially supposed to have been banned in 1993 by the Government of India. Official lapses and apathy apart, the surveys by the activists working against this practice show that even now over 14 lakhs of scavengers are still suffering ignominy and nearly 95% of these workers are women. These scavengers are the untouchables section of dalits, who have been trapped in this occupation as a birth based work. The States have not taken the act of abolition of this practice seriously and even till 1999-2000 many a States had not notified the act. It is in this light that the social action group Safai Karmachari Andolan has given a call for abolition of this atrocity by the end of 2010.

The manual scavenging is an offshoot of the untouchability practiced in India. Many feudal societies have seen the birth based hierarchy of caste but the Indian caste system has been legitimized through Holy Scriptures to make it a religious phenomenon. Many a factors have contributed to emergence of caste; Race, class and religion. Currently the race theory does not find much favor with the serious scholars of caste. The major contributing factors have been the economic and religious. In his famous phrase Ambedkar points out that “caste is not a division of labor; it is a division of laborers”. He puts more emphasis on the ideological and religious factors. In his analysis these factors are interwoven as civilizational factors which influenced and resulted in social changes leading to formation of caste system.

The evolution of caste society was a slow process. Its continuance was secured by making it hereditary. The primitive taboo on eating together and intermarriage became caste law, which in turn led to marriage limits and elaborate rules of endogamy and exogamy. The continuance of caste system depended on vast network of sub-castes, which were connected with occupations. This sub-caste – jati – came to have more relevance and became the basis of functioning of Hindu society. As caste became hereditary with close connection between occupation and sub-caste, it resulted in an automatic check on individual moving up in the hierarchy of castes

Untouchablity is the outcome of this caste system and manual scavenging is the subhuman expression of the same, that being amongst the worst of atrocities perpetrated by the upper caste on the low castes. This is the key concept inherent in purity-pollution, and rebirth theories which were used to enslave the low caste and keep them tied to the subhuman occupation. Khalid Akhtar (Hardnews Media, March 2008) points out that the earliest references to it are found in Narada Samhita and Vajasaneyi Samhita. In Narada Samhita one of the 15 duties listed for untouchables, one is the removal of human excreta. In Vajasaneyi Samhita, Chandalas are referred to as slaves engaged in the disposal of human excreta. Even other dalits look down upon them and all the avenue of social interaction in any form were denied to them.

Excavations at Lotha in Gujarat show that Harappan civilization did have water based sanitation system. The toilets were connected by drains and had manholes and chambers. With the decline of Harappan civilization this technology went into oblivion.

The system of manual scavenging continued in medieval times as well. While the Muslim kings did introduce different techniques at places. As such the communal politics, as is its wont, is trying to propagate that since the Muslims used Burqua, women could not go out to jungles, they introduced manual scavenging. This is another way of putting the blame of internal problems to external source. This is far from truth. Observation and research into the Mughal forts’ sanitation system shows that they had small outlets in the bathing rooms of Mughal forts which were used as toilets. The waste from these toilets was carried by gravitational force to the ramparts with the help of water. This technique has been seen in the Red Fort in Delhi, in the palaces of Rajasthan, in Hampi, Karnataka and in Thiruvananthapuram, Kerala.

The British did claim that they have come here, carrying the “White Man’s Burden” of civilizing the East, but as far as retrograde social practices were concerned they were unconcerned about those. In the case of manual scavenging they put their seal of approval on this by systematizing it and creating the posts of scavengers in army, railways, municipalities and big towns. Barring few places they did not put the sewer lines in most of the places, as they observed that already the system of scavenging is in place. Due to industrial changes, end of craftsmanship and pauperization of a section of society, some of them forced to join in this work.

Ambedkars’ rebellion against caste and his prescription on ‘Annihilation of caste’ and Mahatma Gandhi’s efforts to eradicate untouchabilty, experiments with new designs of toilets, had a minimal effect on the total social situation, as the social transformation has been painfully slow. After partition the untouchables from Pakistan were not permitted to come to India and Indian Government did not try much for the safe passage of this group to India. And here the situations continued as it has been due to which the life was a total humiliation for this section of society persisted. During last many decades the pressure of the social movements is forcing the State authorities to abolish this practice and rehabilitate the scavengers. As usual the State response has been half baked and there is a lack of effectivity in the same. The step of the social movements to do all, advocacy, campaign and other pressures, to ensure that this practice is put to
rest is very significant.

One knows that the popular opinion and efforts of all sensitive people to end this are needed at this point of time to remove this blot on Indian society, irrespective of its sanction by the Holy Scriptures and traditional practices. Enough is enough, this atrocity on a section of our society has to be stopped forthwith, they need to be rahabilitated to the life of dignity, come what may.

 

CRIMINALS IN POLICE UNIFORM
– An appeal to union home minister & Karnataka state home minister

The ABC of police force in India is apathy ,
brutality & corruption . in India, police are not impartially enforcing
law instead are working as hand maidens of rich & mighty. The corrupt
police officers are collecting protection money from criminals ,
collecting money to go slow on investigations , to file B- reports , to
fix innocents in fake cases , to murder innocents in lock-up /
encounters . they are hand in league with land mafia , today C.M of
Karnataka himself issued a warning to police officials about this.
Even in lock-ups , jails, the rich inmates bribe
officials get better food from outside , mobile phones , drugs , drinks
, cigareetes , etc. they get spacious cells & get best private medical
care . where as the poor inmates are even denied food , health care ,
living space as per the provisions of law. The corrupt jail officials
instigate rowdy elements in the jails to assault poor inmates & to toe
their line. More corrupt the police more wealthier he is. Even CBI
officials are no different. The only beacon of hope is still there are
few honest people left in the police force.
Hereby , e-voice urges you to make public the following
information in the interest of justice.

1.how many CBI officials & Karnataka state police officials are facing
charges of corruption , 3rd degree torture , lock-up/encounter deaths
, rapes , fake cases , etc ?

2.how you are monitoring the ever increasing wealth of corrupt police
officials?

3.how many officials from the ranks of constable to DGP have amassed
illegal wealth?

4.what action you have taken in these cases ? have you got
reinvestigated all the cases handled by tainted police?

5.how many policemen have been awarded death penalty & hanged till
death , for cold blooded murders in the form of lock-up deaths /
encounter deaths ?

6.why DGP of Karnataka is not registering my complaint dt 10/12/2004 ,
subsequent police complaints ?
is it because rich & mighty are involved ?

7.e – voice is ready to bring to book corrupt police officials subject to
conditions, are you ready ?

8.how many police personnel are charged with violations of people’s
human rights & fundamental rights ?

9.how many STF police deployed to nab veerappan were themselves
charged with theft of forest wealth?

10.how you are ensuring the safety , health , food , living space of
inmates in jails?

11.how you are ensuring the medical care , health of prisoners in
hospitals & mental asylums?

12.How you are ensuring the safety , health , food , living space of
inmates in juvenile homes ?

TORTURE CHAMBERS OF INDIA

They are our own Gitmos. Where, far away from the eyes of the law, ‘enemies of
the state’ are made to ‘sing’. THE WEEK investigates

By Syed Nazakat

Little Terrorist, as the intelligence sleuths came to call him, turned out to be
a hard nut to crack. No amount of torture would work on 20-year-old Mohammed
Issa, who was picked up from Delhi on February 5, 2006. The Delhi Police
believed that he had a hotline to Lashkar-e-Toiba deputy chief Zaki-ur-Rehman
Lakhwi, who later masterminded the 26/11 attack on Mumbai. At a secret detention
centre in Delhi, the police and intelligence officers tried every single torture
method in their arsenal-from electric shock to sleep deprivation-to make Issa
sing. He stuck to his original line: that he had come from Nepal to visit a
relative in Delhi. Only, they refused believe him.

According to the police, the youth from Uttar Pradesh, who had moved to Nepal in
2000 along with his family after his father, Irfan Ahmed, was accused in a
terrorism case, returned to India to set up Lashkar modules in the national
capital. More than six months after he was picked up, the police announced his
arrest on August 14. He has since been shifted to the Tihar jail. His lawyer
N.D. Pancholi said Issa was kept in illegal custody for months. If not, let the
police say where he was between February 5 and August 15, he challenged.

Issa could have been detained in any of Delhi’s joint interrogation centres,
used by the police and intelligence agencies to extract precious information
from the detainees using methods frowned upon by the law. As one top police
officer told THE WEEK in the course of our investigation, these torture chambers
spread across the country are our “precious assets”. They are our own little
Guantanamo Bays or Gitmos (where the US tortures terror suspects from
Afghanistan and elsewhere for information).

Not many admit their existence, because doing so could result in human rights
activists knocking at their doors and bad press for the smartly dressed
intelligence men. It is a murky and dangerous world, according to K.S.
Subramanian, Tripura’s former director-general of police, who has also served in
the Intelligence Bureau. “Such sites exist and are being used to detain and
interrogate suspected terrorists and it has been going on for a long time,” he
told THE WEEK. “Even senior police officers are reluctant to talk about the
system.” So are people who have been to these virtual hells that officially do
not exist.

THE WEEK has identified 15 such secret interrogation centres-three each in
Mumbai, Delhi, Gujarat and Jammu and Kashmir, two in Kolkata and one in Assam.
(One detention centre that is shared by all security and law enforcement
agencies is in Palanpur, Gujarat.) Their locations have been arrived at after
speaking to serving and retired top officers who had helped set up some of these
facilities. Those who have spent time in these places had no idea where they
are. They were taken blindfolded and were allowed no visitors. The only faces
they got to see were those of the interrogators, day in and day out.

The biggest of the three detention centres in Mumbai, the Aarey Colony facility
in Goregaon, has four rooms. The Anti-Terrorism Squad questioned Saeed Khan
(name changed), one of the accused in the Malegaon blasts of September 2006,
here. He was served food at irregular intervals (led to temporary
disorientation) and was denied sleep. Another secret detention centre maintained
in the city by the ATS at Kalachowky has a sound-proof room. Sohail Shaikh,
accused in the July 2006 train bombings, was held here for close to two months.
“He was kept in isolation for days together,” said an officer. “He crumbled
after being subjected to hostile sessions. Intentional infliction of suffering
does not always yield immediate results. Sometimes you have to wait for many
days for the detainee to break. It is a tedious process.” The smallest of the
three facilities at Chembur has just two rooms.

Parvez Ahmed Radoo, 30, of Baramulla district in Kashmir, was illegally detained
in Delhi for over a month for allegedly trying to plot mass murder in the
national capital on behalf of the Jaish-e-Mohammed. The Delhi Police’s
chargesheet says he was arrested from the Azadpur fruit market in Delhi on
October 14, 2006. But according to Parvez’s flight itinerary, he travelled from
Srinagar to Delhi on September 12 on SpiceJet flight 850. The flight landed at
Delhi airport at 12.10 p.m. He had to catch another flight at 1.30 p.m.
(SpiceJet flight 217) to Pune, where, according to his parents, he was going to
pursue his Ph.D. But he never boarded the Pune flight as he disappeared from the
Delhi airport.

Parvez wrote an open letter from the Tihar jail, where he is currently held, in
which he said he was arrested from the airport on September 12 and kept in
custody for a month. Apparently, he was first taken to the Lodhi Colony police
station and then to an apartment in Dwarka, where electrodes were attached to
his genitals and power was switched on. (Delhi’s secret detention centres are
located at Dwarka in south-west Delhi, the Inter-state Cell of the Crime Branch
in Chanakyapuri in central Delhi, and the Lodhi Colony police station in south
Delhi.)

“After my arrest on September 12, I was taken to Pune, where I was shown
pictures of many Kashmiri boys,” Parvez said in the letter. “They wanted me to
identify them. As I didn’t know any one of them, they brought me to Delhi again
and threw me into the torture chamber of Lodhi Road [sic] police station. They
took off my clothes and started beating me like an animal, so ruthlessly that my
feet and fingers started bleeding. I was later forced to clean the blood-stained
floor with my underwear. They gave me electric shocks and stretched my legs to
extreme limits, resulting in internal haemorrhage. I started passing blood with
my urine and stool. Later I was shifted to one flat near Delhi airport [he later
identified the place as Dwarka]. From the adjacent flats, voices of crying and
screaming had been coming, indicating presence of other persons being tortured.”

Throughout his detention, wrote Parvez, he was asked to lie to his parents that
everything was fine. In the letter he also gave the mobile number from which the
calls were made-9960565152. His family is trying to collect the call site
details of the number to prove his illegal detention.
Delhi-based journalist Iftikhar Geelani, who spent nine days in the Lodhi Colony
police station after his arrest in 2002 on spying charges, is yet to get over
the traumatic experience. “There are lock-ups with such low ceilings that a
person will not be able to stand,” he said. “There is an interrogation centre
within the police station where people are brutally tortured with cables, and
some are completely undressed and abused. They also have a facility to raise the
temperature of the cell to a point where it is unbearable and then suddenly
bring it down to freezing cold.”

Assistant Commissioner Rajan Bhagat, spokesman for the Delhi Police, denied the
existence of such facilities. “Nobody ever asked me the question [about secret
detention centres],” he said. “We don’t operate any such facility in our police
stations.”
But Maloy Krishna Dhar, former joint director of the IB, confirmed the existence
of secret detention centres in Delhi and other parts of the country. He was
convinced that detention outside the police station and torture are an
inevitable part of the war on terrorism. “Now I would never dream of doing the
things I did when I was in charge,” said Dhar. “But security agencies need such
facilities.” Interrogating suspected terrorists at secret detention centres, he
said, is the most effective way to gather intelligence. “If you produce a
suspect before court, he will never give you anything after that,” he said. In
other words, once you record the arrest you are within the realm of the law and
you have to acknowledge the rights of the accused-arrested and contend with his
lawyer.

An officer who worked in one of the detention centres admitted that extreme
physical and psychological torture, based loosely on the regime in Guantanamo
Bay, is used to extract information from the detainees. It includes assault on
the senses (pounding the ear with loud and disturbing music) and sleep
deprivation, keeping prisoners naked to degrade and humiliate them, and forcibly
administering drugs through the rectum to further break down their dignity. “The
interrogators isolate key operatives so that the interrogator is the only person
they see each day,” he said. “In extreme cases we use pethidine injections. It
will make a person crazy.”

Molvi Iqbal from Uttar Pradesh, a suspected member of the
Harkat-ul-Jihadi-Islami who is currently lodged in Tihar, was held at a secret
detention centre for two months according to his relatives. They alleged that
during interrogation a chip was implanted under his skin so that his movements
could be tracked if he tried to escape. “He fears that the chip is still inside
his skin,” said one of his relatives. “That has shattered him.”

Kolkata has its own Gitmos in Bhabani Bhawan, now the headquarters of the
Criminal Investigation Department, and the Alipore Retreat in Tollygunj, a
bungalow that is said to have 20 rooms. They were bursting at the seams at the
height of the Naxalite movement, but are more or less quiet now. “A large number
of innocent people, as well as suspected terrorists, have disappeared after
being taken to such secret detention centres,” said Kirity Roy, a Kolkata-based
human rights lawyer. “Their bodies would later be found, if at all, in the
fields.”

That was how militancy was tackled, first in Punjab and then in Kashmir. Today
no secret prison exists in Kashmir officially after the notorious Papa-2
interrogation centre was closed down. But secret torture cells thrive across the
state. The most notorious ones are the Cargo Special Operation Group (SOG) camp
in Haftchinar area in Srinagar and Humhama in Budgam district. Then there are
the joint interrogation centres in Khanabal area of Anantnag district and Talab
Tillo and Poonch areas in Jammu region. Detentions at JICs could last months.
Lawyers in Kashmir have filed 15,000 petitions since 1990 seeking the
whereabouts of the detainees and the charges against them without avail.

The most recent victim of the torture regime was Manzoor Ahmed Beigh, 40, who
was picked by the SOG from Alucha Bagh area in Srinagar on May 18. His family
alleged that he was chained up, hung upside down from the ceiling and ruthlessly
beaten up. He died the same night. Following public outrage, the officer in
charge of the camp was dismissed from the service in June.

Maqbool Sahil, a Srinagar-based photojournalist who was held at Hariniwas
interrogation centre for 15 days, says it is a miracle that he is alive today.
“If you tell them [interrogators] you are innocent, they will torture you so
ruthlessly that you will break down and confess to anything,” he says.
Human rights organisations are understandably concerned. Navaz Kotwal,
coordinator of the Commonwealth Human Rights Initiative, said that there should
be an open debate on the illegal detention centres. “The US had a debate on the
Gitmos. Our government should come forward and respond to these allegations,”
she said.

No one wants to compromise the nation’s safety, but the torture becomes
unbearable, and questionable, when innocent people like the 14-year-old boy
Irfan suffer (see box on page 30). The security of the country and its people is
important and terrorism should be crushed at all cost. But the largest democracy
in the world should also ensure that human rights are not violated.

Dhar defended the secret prison system, arguing that the successful defence of
the country required that the security establishment be empowered to hold and
interrogate suspected terrorists for as long as necessary and without
restrictions imposed by the legal system. “The primary mission of the agencies
is to save the nation both by overt and covert means from any terrorist threat,”
he said. “But to keep the programme secret is a horrible burden.”
with Anupam Dasgupta

Forty secret interrogation cells unveil real face of India [The Nation] 05 Jul,
2009


Worlds oldest democracy United States may have been forced to close Guantanamo
Bay detention centre, but the largest democracy India runs 40 such secret
chambers across the country, where suspects are subjected to extreme
interrogation for months and years.
A leading news magazine The Week in its forthcoming issue, accessed by KT News
Service (KTNS), revealed the horror of torture chambers, far from the eyes of
law.
The investigating team of the magazine identified 15 secret interrogation
centres-three each in Mumbai, Delhi, Gujarat and Jammu and Kashmir, two in
Kolkatta and one in Assam. Officials admit that there could be more and roughly
put their numbers at 40. In Palanpur region of Gujarat all security agencies
share one detention centre, the magazine report said. It maintained that mostly
suspects were brought blindfolded so they could hardly pinpoint the place,
adding, the only faces they got to see were those of the interrogators.
The magazine quoted Parvez Ahmed Radoo, 30, of Baramulla district, a student in
Pune University, who was illegally detained in Delhi, as saying that he, in his
open letter, from notorious Tihar jail, wrote that electrodes were attached to
his genitals and power was switched on during interrogation in the centre.
A large number of innocent people, as well as suspected terrorists, have
disappeared after being taken to such secret detention centres, said Kirity Roy,
a Kolkata-based human rights lawyer.
The report further said that in Kashmir, there were many interrogation centres
like the Cargo Special Operation Group (SOG) camp in Haftchinar area in Srinagar
and Humhama in Budgam district.
There are the joint interrogation centres in Khanabal area of Islamabad district
and Talab Tillo in Jammu and one in Poonch.
It said that the lawyers in Kashmir had filed 15,000 petitions since 1990
seeking the whereabouts of the detainees and the charges against them without
avail.
The most recent victim of the torture regime was Manzoor Ahmed Beigh, 40, who
was picked by the SOG from Aloochi Bagh area in Srinagar on May 18. His family
said that he was chained up, hung upside down from the ceiling and ruthlessly
beaten up.
He died the same night.
Quoting KS Subramanian, former Director General of Indian police who had also
served in the Intelligence Bureau, the report said that these sites existed and
were being used to detain and interrogate suspects and it had been going on for
a long time.
An officer, who worked in one of the detention centres admitted that extreme
physical and psychological torture, based loosely on the regime in Guantanamo
Bay, was used to extract information from the detainees.
It included assault on the senses like sleep deprivation, keeping prisoners
naked to degrade and humiliate them, and forcibly administering drugs through
the rectum to further break down their dignity.

In India, Torture by Police Is Frequent and Often Deadly

By Rama Lakshmi

MEERUT, India — Rajeev Sharma, a young electrician, was sleeping when police
barged into his house a month ago and dragged him out of bed on suspicion of a
burglary in the neighborhood, his family recalled.

When his young wife and brother protested, the police, who did not show them an
arrest warrant, said they were taking Sharma to the police station for “routine
questioning.”

“Little did we know that we would lose him forever,” said Sunil Sharma, Rajeev’s
brother, recounting how he died while in police custody. “Their routine
questioning proved fatal,” he added, sitting beside his brother’s grieving
widow.

Rajeev Sharma, 28, died at the police station within a day of his detention.
Police said he committed suicide, but his family charges that he was beaten and
killed.

The case highlights the frequent use of torture and deadly force at local police
stations in India, a practice decried by human rights activists and the Indian
Supreme Court. A little more than a decade after Parliament established the
National Human Rights Commission to deal with such abuses, police torture
continues unabated, according to human rights groups and the Supreme Court.
According to the latest available government data, there were 1,307 reported
deaths in police and judicial custody in India in 2002.

“India has the highest number of cases of police torture and custodial deaths
among the world’s democracies and the weakest law against torture,” said Ravi
Nair, who heads the South Asia Human Rights Documentation Center. “The police
often operate in a climate of impunity, where torture is seen as routine police
behavior to extract confessions from small pickpockets to political suspects.”
He said that laws governing police functions were framed under British colonial
rule in 1861 “as an oppressive force designed to keep the population under
control.”

Police records show that, two weeks before his detention, Rajeev Sharma made a
electrician’s service call at the home of a wealthy businessman. On that day,
the man reported that $500 worth of gold jewelry and about $100 in cash were
missing, police said.

After Sharma’s detention, his brother called the police station and was told
that Sharma had confessed to the theft, he said. The brother said he and other
family members rushed to the station and were able to see Sharma briefly.

“His eyes were red, his mouth was bleeding and he could hardly walk. They had
beaten him very badly. That was the last glimpse we had,” said Sunil Sharma, 35.
“By the evening, the police informed us that he had committed suicide in the
lockup by hanging himself with a blanket. The suicide story is a coverup; my
brother died of police torture.”

The death in police custody sparked two days of rioting and protests in Meerut,
about 45 miles from New Delhi, in the northern state of Uttar Pradesh. Angry
residents surrounded and threw stones at the police station, burned police
vehicles and blocked traffic.

Thousands participated in Sharma’s funeral procession; protesters demanded an
open inquest by a panel of physicians and the immediate arrests of those
responsible.

Police conducted an autopsy in private, lawyers close to the case said. But
authorities did issue arrest warrants for the man who said he had been robbed
and for six police officers, an apparent reaction to the unusual popular outcry,
family members and lawyers said. The merchant is in jail, alleged to have
participated in beating Sharma, but the police officers apparently have fled,
authorities said.

Although the Indian government signed the international Convention Against
Torture in 1997, it has not ratified the document. Some members of Parliament
have argued against ratification, saying they oppose international scrutiny and
asserting that Indian laws have adequate provisions to prevent torture. Human
rights advocates said Uttar Pradesh ranks highest among Indian states in the
incidence of police torture and custodial deaths.

Some police officers justify the use of torture to extract confessions and
instill fear.

“The police in India are under tremendous pressure, as people need quick
results. So we have to pick up and interrogate a lot of people. Sometimes things
get out of control,” said Raghuraj Singh Chauhan, a newly assigned officer at
the station where Rajeev Sharma died. “After all, confessions cannot be
extracted with love. The fear of the police has to be kept alive — how else
would you reduce crime?” he added, fanning himself with a police file folder.

A senior police officer in Meerut, on condition of anonymity, openly discussed
torture methods with a visiting reporter. One technique, he said, involves a
two-foot-long rubber belt attached to a wooden handle.

“We call this thing samaj sudharak,” the officer said, smiling, using the Hindi
phrase for social reformer. “When we hit with this, there are no fractures, no
blood, no major peeling of the skin. It is safe for us, as nothing shows up in
the postmortem report. But the pain is such that the person can only appeal to
God. He will confess to anything.”

Last September, in a written ruling in a case of police misconduct, the Supreme
Court criticized the use of torture. “The dehumanizing torture, assault and
death in custody which have assumed alarming proportions raise serious questions
about the credibility of the rule of law and administration of the criminal
justice system,” the court said. “The cry for justice becomes louder and
warrants immediate remedial measure.”

In addition, the severity of the torture problem is probably worse than
statistics indicate, because victims, fearing reprisals, rarely report cases
against the police, human rights advocates said.

“About 40 percent of custodial torture cases are not even reported. They are
just grateful for God’s mercy that they are alive and free,” said Pradeep Kumar,
a human rights lawyer who has represented police torture victims in Uttar
Pradesh. “Torture sometimes leads to permanent disability, psychological trauma,
loss of faculties.”

The National Human Rights Commission, led by a retired Supreme Court justice,
has faced criticism that it is too dependent on the government and lacks
enforcement power.

“We have not been able to build a human rights culture in the police force,”
said Shankar Sen, a former police officer and an ex-member of the commission.
“It is not only individual aberration but a matter of systemic failure.”

The commission has ordered that cameras be installed in police stations to
monitor and deter police brutality.

“In the past year we have spent about $600,000 to equip most of the police
stations in New Delhi with a camera. This will make police functioning
transparent and have a big impact on torture,” said Maxwell Pereira, a senior
police official in the capital.

But critics and families of victims said they had not seen changes. In a
much-publicized case in New Delhi last fall, five policemen were charged with
beating and killing Sushil Kumar Nama at a police station.

Nama had been detained on suspicion that he was working with neighborhood
gamblers. Four of the police officers were arrested in April, but one remains at
large, authorities said. Police officials denied that Nama was tortured, saying
he died of a heart attack after he was released from custody.

“My two children are so traumatized that now they run home scared every time
they see a policeman on the street,” said Nama’s wife, Rekha, 29. “They know
that danger lurks behind that uniform. They are not policemen, they are wolves.”

On the wrong side of law

By Geeta Pandey
BBC News, Delhi

Chunchun Kumar

Chunchun Kumar’s wound is still raw

For Chunchun Kumar of Bihar’s Nawada district, it was just another evening as he
lounged around at a tea stall in his village along with a friend.

But, then something happened that changed his life.

“It was 17 March of this year. There were six of them. When we first saw them,
they were beating up the temple priest. He was lying on the ground, they were
kicking and punching him,” Kumar says.

“Then they started hitting two other men. Then they came into the tea shop and
they beat us black and blue. Then they fired at us.”

Kumar lifts up his shirt to show a bullet mark on his abdomen. The wound is
still oozing.

The perpetrators were no ordinary criminals.

Says Kumar, “They were all policemen. I don’t know why they were angry. They
were all drunk, they were like drunk elephants, they went on a rampage.”

The shocked villagers complained to the police authorities, and the offending
policemen were suspended from duty and arrested.

‘Very serious’

Additional director general of police in Bihar Anil Sinha confirmed the
incident.

“Two of the policemen who were inebriated vandalised the tea shop and began
firing despite protests from their other colleagues. They were arrested and,
although they have been released on bail, they are facing criminal charges.”

Kumar’s fight for justice recently brought him to the Indian capital, Delhi,
where he narrated his story at India’s first National People’s Tribunal on
Torture.

Activists say torture by police is rampant in India.

“The problem of torture is very serious. Today we have around 1.8 million cases
of police torture each year in India,” says Henri Tiphagne of People’s Watch, an
NGO.

Policemen in India

The police are often a law unto themselves, say campaigners

Mr Tiphagne says the victims mostly are from the poorer sections of society.

“They are generally the (low-caste) Dalits, the tribals and the Muslims. And
torture is used by those who are in power, those who possess, the landlords and
the companies who put pressure on the police to carry out torture,” Mr Tiphagne
says.

Mr Anil Sinha says cases of human rights violations involving the police are
“exaggerated” by activists.

“It’s a kind of stereotype being dished out by the NGOs and activists. And
because police have a bad reputation, so people take such allegations to be
correct.

“We do not condone any human rights violations by police in any manner, and such
cases are rare. We have a mechanism in place to deal with such cases and
penalise the guilty,” Mr Sinha says.

Shankar Sen, a retired police officer and former member of the human rights
commission, says: “The policeman’s work is very complex, there are pressure on
him to deliver results, the police are exposed to extraneous influences and
pressures.”

But, he says, that does not condone torture. “It’s illegal, and as a policeman I
know it doesn’t work.”

Mr Sen admits that police torture is prevalent. “Torture does take place, it’s
very common, but it’s unacceptable. Some allegations against the police are
shocking.”

Meenakshi Ganguly of Human Rights Watch says nearly every police station in
India can be held guilty of torture.

‘Arbiter of justice’

In many parts of the country, she says, the situation is so bad that people will
not got to a police station to file a case fearing prosecution and retribution.

“There is this pattern of impunity. The fact that police believe they can get
away with it has added to the problem,” Ms Ganguly says.

“The greater problem is that an average policeman believes himself to be the
arbiter of justice. Instead of going to the court, he himself is delivering
justice.

Arun Kumar with parents PP Raju and Lakshmi

Arun Kumar’s mental age has been reduced to one year

“The policeman is not supposed to punish the criminal, he is supposed to catch
the criminal,” she says.

For the victims of torture and their families, it is a long haul.

Arun Kumar of the southern city of Bangalore was picked up by the police after
his employer suspected him of having an affair with his wife.

Kumar’s parents, PP Raju and Lakshmi, say their family home was ransacked, Kumar
was taken to the police station where he was beaten up and tortured for days.

Unable to bear the pain and the trauma, Kumar drank pesticides in an attempt to
kill himself.

He survived, but his parents say their son’s mental age has been reduced to one
year – he is on medication and requires constant care.

The guilty policeman was suspended for a week, but reinstated later. The family
has a long fight ahead of them.

‘Deterrence’

Says Mr Tiphagne, “A case I initiated in 1981 ended in 2007 with the dismissal
of the officer. So I have hope in Arun Kumar’s case too.”

But, he says, this long wait can be a huge deterrence for even the most
determined.

Henri Tiphagne of People’s Watch.

Mr Tiphagne says nearly 2 million cases of torture take place in India every
year

“The torture at the police station ends, but the torture of institutions
continues. It’s more of a psychological and mental nature, it is very
challenging. Most people don’t have the courage to withstand that, very few
survive that,” Mr Tiphagne says.

So while the victims continue to live with the trauma, most of the perpetrators
get away.

They are also emboldened by the fact that India has no clear law on torture.

The country signed the UN Convention on Torture in 1997, but even 10 years
later, it has not ratified it.

“We have to change our culture. We have to create awareness that torture is
illegal. The civil society will have to get involved,” says Meenakshi Ganguly.

“People will have to get past the fact that torture happens only to other
people. And once that happens, it will change,” she says.

INDIA: No to torture, establish rule of law!

The first Prime Minister of India Mr. Jawaharlal Nehru said “Police is standing
on a quadrilateral from where they can protect and also violate human rights?”
But it seems that his words are of no use in India today since there is an
enormous increase in the incidents of police torture during past few decades.

It is apparent that police is the largest agency constituted with the purpose of
establishing the rule of law and human rights. One can read into the Indian
Penal Code, with certain difficulty, the prohibition against torture. Statements
recorded from witnesses under Section 161 of the Criminal Procedure Code are not
blindly admissible in a criminal trial. If the law is so, the next obvious
question is then why do the police resort to torture?

The main reasons are feudal and colonial structure of police, scarcity of
resources in the police department, political intervention and the lack of an
independent agency to investigate the crimes committed by the police themselves.
Modern investigation is unheard of within the police department. In addition,
India’s feudal society condones the use of torture.

The definition of torture as envisaged in the UN Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as an
“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.”

Section 176 (A) of Cr.P.C. have provisions for the investigation in the each
case of custodial death. However, this section is not used in any case in the
entire Uttar Pradesh state. Neither have any Magistrates issued search warrants
under Section 97 of Cr.P.C. when persons were taken into illegal custody.

The Supreme Court of India had issued guidelines to be followed by
law-enforcement officers at the time of arrest and questioning in the case D.K
Basu vs. West Bengal. It is mandatory for the law-enforcement agencies to
follow, but is been negated in the state. Regarding encounter killings, the
National Human Rights Commission has directed the country’s police to register
cases in every case of reported encounter killings. The Commission has also
directed to send it a video of the post-mortem examination in each case of
custodial death. This also is not followed in the state and to the information
of the PVCHR anywhere in the country. The question than is what is the value of
the Supreme Court and the NHRC in the country?

There is a provision for interim relief to be awarded as compensation under
Section 19 of Human Right Act. Article 21 of Indian Constitution guarantees the
right to life with dignity, which is also against torture. But torture
continues unabated in the state. Do laws in the country have any meaning then?

If we look at the statistics, it is mostly the poor, the marginalised, the
Dalits and the members of the minority and backward communities are subjected to
torture. Those who have mafia gangs and known antisocial elements are not
victims of this, cruel practice other than some rare occasions. Only the
ordinary people are afraid of the police and the torture they practice. So does
India have two types of citizens — the one with rights and those who do not
have them?

Police along with the criminals have established the rule of the lords.
Corruption and discrimination are no more mere practices, but the second nature
of the police. Rule of law can be established without preventing police torture.
Let us come together to enlighten ourselves and fight against torture to stop it
and thus establish rule of law.

What you can do?

1) Protest on 26th June against the practice of torture by street plays,
organising discussions and sending letters to the Prime Minister, and through
press releases in newspapers condemning torture and inform us what you did;
2) Indian Government has signed the UN Convention in 1997 but has failed to
ratify it. Send letters to the Prime Minister and the President of India asking
them to require the government to accede the convention;
3) In protest of the cases of torture happening right under the nose of the
National Human Rights Commission, organise a protest in front of the Commission;
4) Write letters to the editor of publications condemning torture;
5) To sensitize the people about torture and its forms, take down cases that
you come across and send it to us so that we could follow it up on your behalf;
6) Write to the Supreme Court asking why its orders and guidelines are not
followed;
7) Write to the government urging the government to provide resources to the
police to function properly.

Thank you

Dr. Lenin Raghuvanshi
Convener – PVCHR
SA 4/2 A, Daulatpur
221002Varanasi
INDIA
Telephone: +91-9935599333
E-mail: pvchr.india@…

Guantanamo, Abu Ghraib… Bagram?
INVESTIGATION: US detention centre under suspicion as eerily familiar claims OF torture and rendition flights surface from the airbase on the outskirts of
Kabul.   by Ian Pannell, BBC Afghanistan Correspondent

NOOR HABIB’S hands shake as he draws a picture of how he says he was abused. He
claims that he was taken to a small, darkened cell where his arms were tied to
the ceiling and he was made to stand in waist-deep water for six hours at a
time.

[Mohammad Nasim says he was asked if he knew Osama Bin laden.]Mohammad Nasim
says he was asked if he knew Osama Bin laden.

He says he was beaten, threatened with dogs, and deprived of sleep. He also
claims there was nothing unusual about his treatment, “everyone else has the
same story”.

Habib was an inmate at the Bagram Theater Internment Facility, an American
military detention center outside Kabul. Now, for the first time, detailed
allegations of widespread abuse and neglect have been made about this top-secret
camp.

“I didn’t think a prison like Bagram ever existed on earth. It is a place that
has no rules or law,” says Sabrullah, another ex-inmate.

Over a period of more than two months, we tracked down 27 former detainees.
There were others, but they were afraid to speak or had been warned not to. Just
two said they had been treated well. Many allegations of ill-treatment appear
repeatedly in the interviews; physical abuse, the use of stress positions,
excessive heat or cold, unbearably loud noise, being forced to remove clothes in
front of female soldiers and in four cases, being threatened with death at
gunpoint.

The account of an inmate known as Dr Khandan is one of the most harrowing. He
says he was kept in isolation for months and treated worse than an animal: “They
deprived us of sleep, they put us in a cold room and turned the air conditioning
on and would take away the blanket. They poured cold water on you in winter and
hot water in summer. They used dogs against us. They put a pistol to your head
and threatened you with death. They put some kind of medicine in the water to
make you sleepless and then they would interrogate you.”

All the men who spoke to us were interviewed in isolation and they were all
asked the same questions. They were held at times between 2002 and 2008 and they
were all accused of belonging to or helping al-Qaeda or the Taliban.

None of the inmates were charged with any offense or put on trial; some even
received apologies when they were released. While none of the allegations can be
independently verified, the ill-treatment they describe also appears in an
inquiry by US Senators into the handling of detainees in US custody, and they
match the findings of interviews with ex-inmates conducted by human-rights
organizations and legal groups. They are very similar to the methods that were
used at Abu Ghraib prison in Iraq and Guantanamo Bay in Cuba.

“The conditions at Bagram were harder than Guantanamo,” says Taj Mohammed. The
camp has held thousands of people over the last eight years and a new
multi-million dollar detention center is currently under construction.

Most of the inmates are Afghans but some were captured abroad and brought here
under a process known as “extraordinary rendition”, including at least two
Britons. The Obama administration says they are dangerous men and it classifies
them as “terrorist suspects” and “enemy combatants” rather than “prisoners of
war”.

It is a legal classification that critics say deliberately denies inmates access
to lawyers or the right to appeal or even complain about their treatment.

The Pentagon has denied the charges and it insists that all inmates are treated
humanely. We were not allowed to visit Bagram, nor was anyone made available for
an interview. Instead, a spokesman for the US Secretary of Defense responded to
written questions. Lieutenant Colonel Mark Wright insisted that conditions at
Bagram meet international standards for care and custody. In a statement, he
said: “Department of Defense policy is and always has been to treat detainees
humanely. There have been well-documented instances where that policy was not
followed, and service members have been held accountable for their actions.”

The US military said it would investigate any serious claims of abuse, but none
of the men interviewed had been made aware of any formal complaints procedure.

But another former inmate, known as Mirwais, said: “They have no respect for
human beings. They blame others for violating human rights. You just go and see
how they violate human rights.”

Since coming to office, president Barack Obama has banned the use of torture and
ordered a review of its policy on detainees, which is expected to report next
month. But unlike Guantanamo Bay, the prisoners at Bagram have no access to
lawyers and they cannot challenge their detention.

Tina Foster, executive director of the International Justice Network, a legal
support group which is bringing a test case in the States to try to win
representation for four detainees, says the inmates at Bagram are being kept in
“a legal black hole, without access to lawyers or courts”.

She is pursuing legal action that, if successful, would grant detainees the same
rights as those still being held at Guantanamo Bay, but the Obama administration
is trying to block the move.

Last summer, the US Supreme Court ruled that detainees at Guantanamo should be
given legal rights. Speaking on the campaign trail, Obama applauded the ruling:
“The Court’s decision is a rejection of the Bush Administration’s attempt to
create a legal black hole at Guantanamo. This is an important step toward
re-establishing our credibility as a nation committed to the rule of law, and
rejecting a false choice between fighting terrorism and respecting habeas
corpus.”

Foster accuses Obama of abandoning that position and “using the same arguments
as the Bush White House”.

In its legal submissions, the US Justice Department argues that because
Afghanistan is an active combat zone it is not possible to conduct rigorous
inquiries into individual cases and that it would divert precious military
resources at a crucial time. Pentagon spokesman Wright says: “Detention during
wartime is not criminal punishment and therefore does not require that
individuals be charged or tried in a court of law.”

Obama has also ruled against an earlier decision to release photos that show
abuse of prisoners in US custody in Afghanistan.

Ex-inmate Esmatullah says he has trouble breathing when he thinks about Bagram,
he gets nervous at the very mention of its name. Like many others, he also
claims that he was beaten and threatened during interrogation: “The Afghan
translator told me he has orders to take out my eyes, break my legs and hands. I
said I am not afraid of dying. Then he hit me with a stick so hard that I had
severe pains in my back for a month and a half.”

Unlike Abu Ghraib and Guantanamo Bay, Bagram has received scant attention so
far. The men would like an official apology, recognition of the abuse they say
they have suffered and compensation.

These revelations come at a time when president Obama is trying to re-set
America’s relationship with the Muslim world and he is redoubling US efforts to
win the war in Afghanistan. It is a controversy that has already attracted much
attention in the Afghan and Pakistan media and seriously threatens to tarnish
the image of the new Obama administration on both sides of this troubled border.

INDIA: Structural breakdown of the justice system must be addressed

The reports that appeared yesterday in the Indian media quoting ‘informed
sources’ that the Tamil Nadu state police has decided not to produce detainees
in courts exposes the extent to which the justice institutions have broken down
in India. According to the provisions of the Criminal Procedure Code, 1973 it is
the statutory duty of the state police to assist the courts in the country for
its day-to-day functioning. It is also mandatory for the police to produce the
detainees remanded to judicial custody before the courts, as and when required
by the courts. Any decision by the police, express or implied, against this
official duty must not go unpunished.

The decision of the Tamil Nadu state police is a wilful dereliction of official
responsibility, negation of judicial supremacy and the very function of the
police in maintaining law and order. The Asian Legal Resource Centre (ALRC) and
its sister concern the Asian Human Rights Commission (AHRC) have been
continuously reporting instances suggesting the systematic breakdown of rule of
law in India, particularly concerning the police. The decision by the state
police of Tamil Nadu to disregard the provisions of law, substantiates ALRC’s
position that there are apparent and deep-rooted problems affecting the rule of
law in India.

Lawyers engaged in professional misconduct, judges failing to perform duties and
police officers committing crimes, assaulting persons and destroying property
have become the defining characters of the justice dispensation system in the
country. The structural breakdown is apparent. Yet, instead of gearing up to
repair the ruptures, it appears that the government is forcing the people to get
used to the reality.

The approval by the Government of India for recruiting, training and deploying
Salwa Judum, in Chhattisgarh state, in the excuse of countering Naxalite
activities in that state is an example. Salwa Judum is nothing but an armed
mercenary group operating with impunity in Chhattisgarh. The Chhattisgarh state
administration finds it convenient to arm a faction of organised civilians to
fight anti-state movements like the Naxalites. By promoting Salwa Judum, the
state is trying to absolve from its responsibility of maintaining law and order
in its territory.

The Government of India, instead of preventing the Chhattisgarh state
administration from continuing with the deployment of Salwa Judum, insisted yet
another state administration, the Manipur state government, to resort to similar
tactics in 2008. The same practice was implemented years ago in the state of
Jammu and Kashmir during the time of rightwing BJP led government in India.
Neither in Jammu and Kashmir, nor in Chhattisgarh or in Manipur, has the
situation improved since then.

In the past two years, there has been an alarming increase in the number of
extra-judicial executions reported from India. In the Indian context, such
murders are referred to as ‘encounter killings’. As of now, there is no legal
framework in the country by which an impartial enquiry and investigation is
possible in a case of encounter killing. The practice is, a superior officer and
later the court, accepts a report sent in by the police involved in the murder
and no further action is initiated. The murder is often rewarded by the
administration, so much so, there are more than three dozen ‘encounter
specialists’ serving as police officers in various parts of the country.

Impunity for the police to murder and the lack of punishment trivialises the
practice of custodial torture in the country. The practice of torture is
widespread and is accepted as an essential requirement for law enforcement.

On June 15 this year, the Speaker of the Kerala State Legislative Assembly, Mr.
K. Radhakrishnan, declared at the annual conference of police officers of the
state, that the use of third-degree methods by the state police cannot be
condemned. The Speaker during his keynote address argued that it is ridiculous
to insist that the police officers in India respect human rights. According to
him, it is difficult to do policing and respect human rights at the same time.
He made it clear that when the police investigate a crime, it is natural and
often required for the investigating officer to use torture to prove the case.
Among those listening to these remarks were the Director of the State Police
Training College and the Director General of Police.

Breach of law by the law enforcement agencies in the country meets no bounds.
Corruption, nepotism and the disregard to the law flourish within state
agencies, particularly in the police. The society quiver under the writ of fear
when the law enforcement agents commit crimes with impunity. In spite of
repeated and legitimate requests from national and international human rights
groups and the thematic mandates holders of the UN like the Special Rapporteur
on the question of torture, the Government of India has failed to criminalise
the practice of torture or to ratify the Convention against Torture.

In fact, the government has failed in implementing the directives of its own
Supreme Court. The directives of the Supreme Court in the Prakash Singh case are
yet to be implemented in the country. The implementation of the Court’s
directives is important for improving the state of policing in India, since half
of the issues concerning the police, including the practice of torture and
participation in crimes by the police officers, are carried out at the behest of
corrupt politicians in the country. Having a law against torture while the
ultimate writ above the police entrusted with a corrupt politician will not
improve policing in India.

It is in this context that the protest called in by the Tamil Nadu state police
becomes relevant in exposing and addressing the situation of rule of law in
India. The very fact that the police can intentionally negate the supremacy of
law shows the vacuum of authority in the country. The incident illuminates the
impunity that the police have enjoyed so far that they have now dared to openly
challenge judicial supremacy.

Instead of actively engaging in the situation, the Tamil Nadu state government
has allowed the police to continue with their follies. The police action on
February 19 inside the compound of Madras High Court that injured police
officers, lawyers, judges, court staff and ordinary persons is not of such
triviality that it could be resolved by a fast declared by the state Chief
Minister. The police-lawyer confrontation and the subsequent sequels of
non-cooperation between three important limbs of the justice dispensation system
of the country is not an issue that can be camouflaged with political gimmicks
and ignored.

The February 19 incident is the clarion call for intervention by a system, which
is left to breakdown and disintegrate. The subsequent protest orchestrated by
the state police refusing cooperation to the functioning of the judiciary is a
failure of the constitutional machinery that require a legitimate intervention
by the Government under Article 356 of the Indian Constitution. The failure of
the Government of India to take affirmative actions to correct and revitalise
its criminal justice system poses legitimate challenges to India’s democracy and
the country’s position in the UN Human Rights Council.

TORTURE  BY  DOCTORS  

 Even medical professionals , dotors lie , give  false medical reports. , forensic reports  thus facilitating the escape of rich crooks  and  meting out unjust punishment to innocents. The courts of law depends on medical reports as sacrosanct and awards punishment to innocents letting out rich crooks.

Medical torture describes the involvement and sometimes active participation of medical professionals in acts of torture, either to judge what victims can endure, to apply treatments which will enhance torture, or as torturers in their own right. Medical torture may be called medical interrogation if it involves the use of their expert medical knowledge to facilitate interrogation or corporal punishment, in the conduct of torturous human experimentation or in providing professional medical sanction and approval for the torture of prisoners. Medical torture also covers torturous scientific (or pseudo-scientific) experimentation upon unwilling human subjects.

 

Doctors from both non-democratic and democratic countries are involved in torture. The majority of doctors involved in torture are doctors at risk. Doctors at risk might compromise their ethical duty towards patients for the following possible reasons: individual factors (such as career, economic or ideological reasons), threats, orders from a higher ranking officer, political initiatives, working in atrocity-producing situations or dual loyalty. In dual loyalty conflicts, factors that might compromise doctors’ ethical obligations towards detainees/patients are: ideological totalitarianism, moral disengagement, victim blame, patriotism, individual factors or threats. Another important reason why doctors are involved in torture is that not all doctors are trained in addressing human rights issues of detainees. Torture survivors report that they have experienced doctors’ involvement in torture and doctors themselves report that they have been involved in torture. Testimonies from both torture survivors and doctors demonstrate that the most common way doctors are involved is in the diagnosis/medical examination of torture survivors/prisoners. And it is common before, during and after torture. Both torture survivors and doctors state that doctors are involved during torture by treatment and direct participation. Doctors also falsify journals, certificates and reports. When doctors are involved in torture it has devastating consequences for both torture survivors and doctors. The consequences for the survivors can be mistrust of doctors, avoidance of seeking doctors’ help and nightmares involving doctors. Mistrust and avoidance of doctors could be especially fatal to the survivor, as it could mean a survivor who is ill may not seek medical attention. When the unambiguous role of the doctor as the protector and helper of people is questioned, it affects the medical profession all over the world.

Medical Negligence & Connivance of Doctors in custodial torture

It is a matter of immense pleasure and proud privilege for me to present this premier issue of official journal of Punjab Academy of Forensic Medicine and Toxicology. I fully acknowledge many shortcomings & pitfalls in this issue which are bound to be there, when an issue is brought out in a short duration. It is an endeavor to channelise the problems and their solutions by highlighting them. I hope you will like the contents of this issue and will be generous enough to appreciate the spirit behind this humble effort. Environment pollution is the burning problem of the day. Supreme Court has to intervene in many cases of environment pollution, when other agencies responsible for maintaining it have failed to do their duties well. It is also an important part of our duty, when we are dealing with Toxicology to lay proper emphasis on environment pollution so that we can provide a breeding ground for the new ideas & thoughts to make our environment clean. Today there is a chaos as far as our environment is concerned. We are drinking poisons, we are eating poisons and we are inhaling poisons and this trend is on the “increase. It is not that we do not have knowledge of this, but for – short term benefits we are ignoring it. The authorities do not have the will & determination to implement the laws. We will have to act firmly for our own survival and make this earth a better living place for our next generations. This journal is in a budding stage and I aspire as it grows it will give its due contribution towards improving the vitiated atmosphere on this holy planet. In the medico-legal practice many problems are faced by people & doctors. It will be our emphasis to highlight these in the coming issues and try to find out a solution for these problems. Make it a point to share your problems & views, because these are common & let others utilize these solutions for the benefit of masses. R.K. Gorea JPAFMAT, 2001, Vol.: 1 1 MEDICAL NEGLIGENCE IN CUSTODIAL TORTURE Dr. J.S. DALAL, Professor & Head Dr. R.K. GOREA, Associate Professor Dr. K.K. AGGARWAL, Assistant Professor Dr. A.S. THIND, Assistant Professor Dr. S.S. SANDHU, Lecturer Department of Forensic Medicine, G.G.S. Medical College, Faridkot.

 

 India is a democratic country. Although it has already celebrated the silver jubilee of her independence, but in some cases the word of “Independence” & “Democracy” is forgotten particularly by police personnel, who use third degree methods during the investigations in police stations. When the torture crosses the limit, the help of the doctors is sought. Cases have been reported, where the doctor also showed indifference in treatment of such cases. The present paper is a typical example which falls in this category. KEYWORDS: Police torture, Medical negligence.

 

Physical torture by third degree methods is a common mode adopted by the policeman during Interrogation. Most of the other countries do interrogations by scientific methods like “lie detector” etc., but Indian police still lacks such facilities and it has no option but to apply various methods of torture for extracting truth. CASE HISTORY: The present case is an example of such a case. It was in the year 1993 that a person was arrested by police and tortured. When the condition of the victim became serious, he was taken to civil hospital where he was examined by emergency medical officer According to the report by this medical officer, “the patient was conscious, well oriented in time and space and all his vital signs were normal. He had difficulty in walking and his left thigh and left knee were tender and swollen”, except this no other injury was described on his body. The patient was admitted in the hospital and analgesics and local ointment like thromophob and hot fomentation were prescribed to him. Next day the patient developed the fever which went on increasing for the next 3-4 days and ultimately the patient died in a few days. A case was registered under section 304 IPC against the police. The postmortem examination was done by a board of doctors and in the postmortem report as much as 9 injuries were present on his body. His left leg was swollen with abrasions over it. Other injuries were abrasions and there was no fracture or injury to the vital organ anywhere. On dissection of the thigh, it was found to have frank pus and about 300 ml pus oozed out on incision. The cause of death given in the postmortem report was septicemia as a result of injury to the left thigh which was antemortem in nature and sufficient to cause death in the ordinary course of nature. It was, therefore, clear that there was discrepancy in the report of doctor who first examined and admitted the patient and those who conducted the postmortem. Therefore, JPAFMAT, 2001, Vol.: 1 2 another board was constituted for opinion in this case and the board opined that medical negligence played a role in the death of the victim. Had the thigh infection been treated properly in the form of pus drainage by incision etc., with judicious use of antibiotics, the patient could have been saved. This case was referred to our department and after going through the entire record we were also of the same opinion and agreed with the opinion of the second board. This opinion was accepted by the police and the case was converted from 304 IPC to 323 IPC.

 

 

Doctors Who Designed CIA Torture Programs Finally Get Sued

 

The prisoners were held in pitch-dark cells in a secret CIA facility. As part of their torture regimen, they were forced to listen to music — everything from heavy metal to the theme song from Barney & Friends — blasted at ear-damaging levels, designed to break them psychologically. Now, years later, the doctors who designed that program are getting sued, in litigation filed by the ACLU.

In the early 2000s, the CIA contracted with two psychologists, James Mitchell and John Bruce Jessen, to help them design interrogation methods for detainees held in secret prisons in places such as Afghanistan. The methods Mitchell and Jessen designed included “stuffing them inside coffin-like boxes, exposing them to extreme temperatures and ear-splitting levels of music, starving them,” and depriving them of sleep, according to the Senate’s report on CIA torture. If it wasn’t bad enough that the men who were held in these secret detention sites were tortured repeatedly, a recent report on the CIA’s torture program found that it didn’t even lead to useful information.

TO THIS DAY THE TWO MEN HAVE RECEIVED NO APOLOGIES OR COMPENSATION FOR THEIR ORDEAL.

Two survivors and the family of a man who was killed in Afghanistan’s notorious “Salt Pit” prison site are suing Mitchell and Jessen for designing and performing experiments on them that have left them suffering years after they were freed. Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud were both tortured for years, and to this day they have received no apologies or compensation for their ordeal. The family of Gul Rahman, an Afghan man who died of hypothermia while in secret custody, has never received his body.

Although other prisoners have filed lawsuits over their treatment by U.S. agents, this is the first legal action taken against the healthcare professionals who created torture methods and trained the CIA to use them. It’s also the first lawsuit filed by former prisoners since the Senate released a 525-page summary of its report on the torture program, and ACLU lawyer Dror Ladin told Refinery29 that the details now available to the public will make Suleiman’s and Ben Soud’s cases stronger. “Previous lawsuits involving the CIA torture program had a lot less public information to work with,” Ladin said, and the government was able to keep enough information secret that it was all but impossible for former detainees to make their cases.

OUR SINGLE BIGGEST CONCERN IS THAT THERE HAS BEEN ZERO ACCOUNTABILITY FOR THE TORTURE PROGRAM.

DROR LADIN, STAFF ATTORNEY, ACLU NATIONAL SECURITY PROJECT

Suleiman lives in Zanzibar now with his family, and despite suffering through hours of painfully loud music — everything from metal to the Irish boy band Westlife — he uses Bob Marley songs to calm himself when he starts to have flashbacks to his time in detention.

“Our single biggest concern is that there has been zero accountability for the torture program,” said Ladin. “Without that — when you have impunity for torturers, when you don’t even apologize to the victims of it — it’s difficult to see how we’re not going to have history repeat itself in the future. We can just look forward without accounting for what we did in the past. We run a tremendous risk of going down this path.”

One of the strangest things about the two psychologists who designed the program is that they not only received $81 million in government money for teaching people how to inflict physical and psychological damage on others, but they’ve also never faced any penalties for violating professional ethics. “It’s mind-boggling that ethics complaints against them never went anywhere,” Ladin said.

What would success look like for these men? “A successful outcome would be that this case goes forward, and these three victims and survivors get their day in court and get to tell their story,” Ladin says. “A further success would be when these obvious violations of international law, that a judge and jury agree that these plaintiffs should receive some compensation for it.”

 

 

When Doctors Torture

 

The Senate released its report on the CIA’s interrogation program on Tuesday, revealing horrendous details of the torture tactics used on prisoners, including waterboarding, sleep deprivation, and “rectal feeding.” Complicit in this treatment were several “medical officers” (it’s not explicitly stated whether they hold M.D.s), who enabled, oversaw, and designed many of the techniques.

Two psychologists, Dr. James Mitchell and Dr. Bruce Jessen, were paid $81 million to design the program, and medical officers and physicians’ assistants are cited throughout the report as consultants who advised on things like forcing detainees to stand on broken limbs and “rehydrating” via a rectal tube rather than a standard IV infusion. While in many medical schools around the United States, students swear the Hippocratic Oath, saying out loud the words “may I long experience the joy of healing those who seek my help,” CIA medical officers used their intimate knowledge of the human body as a weapon, to harm people the U.S. government deemed enemies.

 

Dr. Steven Miles is a professor at the University of Minnesota Medical School, a board member of the Center for Victims of Torture, and author of Oath Betrayed: America’s Torture Doctors. He has been studying doctors’ involvement in torture programs since photos of the human rights violations at the Abu Ghraib prison in Iraq came to light in 2003. He maintains the website Doctorswhotorture.com, which tracks physician standards of conduct and punishments for doctors who aid torture around the world. We spoke by phone about the CIA report, the role doctors play in interrogation, and how they could be held accountable.


Julie Beck: What role did doctors play in this CIA-mandated torture, and how integral was it?

“Professional codes describe doctors’ duties not only to avoid participating in torture, but to document and report it.”

Steven Miles: What’s new here is the CIA side. The role of doctors in torture during the War on Terror has been pretty well excavated on the Defense Department side, but the CIA [has some exemptions] from Freedom of Information Act requests, so that’s remained hidden. Essentially the doctors and psychologists were built in to the entire torture system. They weren’t simply bystanders who were called in to respond when the system went off the rails. Some doctors apparently protested this. But they kept their protests inside [the CIA], they never went outside, which they should have done when they saw these types of abuses.

 

In general, doctors in torture have a couple roles. Number one, they design methods of torture that do not leave scars. For example, the so-called “rectal feeding” which is actually a medieval technique in which the intestines are inflated with a viscous material to cause intestinal pain. The docs are also involved in making sure that the prisoners who weren’t supposed to die didn’t die. The third thing doctors do is they falsify medical records and death certificates to conceal the injuries of torture. [Ed.: Miles has written on this in the context of Abu Ghraib.]

Beck: When we’re talking about how integral it was, is the medical knowledge that doctors bring to these operations something interrogation programs could not do without? If every doctor in the world refused to participate, would they be out of luck?

Miles: There are two answers to this question. One is, doctors get the prisoners that the Red Cross never sees. So in a sense doctors are frontline human-rights monitors who get into places where regular human rights groups can’t go. Number two, there are a set of professional codes, that are endorsed by the American Medical Association and the World Medical Association, that describe doctor’s duties not only to avoid participating in torture, directly or indirectly, but also a duty to document it and to report it, going outside the chain of command if necessary.

As human rights groups have put additional pressure on regimes around the world with regard to torture, regimes that are responsive to human rights pressure want to use torture that doesn’t leave scars. So they prefer methods like asphyxiation, isolation, cramming people in small boxes, white rooms with loud noises, because it just destroys people psychologically. Whereas regimes like Assad’s regime [in Syria] don’t really care if there are scars. So there is no role for medicine in that respect in an Assad-type regime or in North Korea’s regime.

“Doctors play a critical role in torture in regimes that don’t want to leave scars, and that includes the United States.”

Beck: So really the doctors become more important in places like the U.S. where if things like this got out, people would pressure the government?

Miles: Yes, doctors play a critical role in torture in regimes that don’t want to leave scars, and that includes the United States.

 

Beck: Why would people use medical knowledge and expertise learned to heal people for the opposite purpose?

Miles: It’s pretty interesting, I’m writing a book on just that question. The docs who get involved in this, number one, are careerists. They get involved for rank and career, and the regimes never coerce them, or extremely rarely coerce them. Instead what happens is the regimes treat them as some kind of elite. The docs are generally not sadists. This is not the stuff of Saw, for example. They go along with the dominant political theme of the prison: “These are our enemies and we gotta squeeze them for the information.” The thing that’s so interesting is that there is research showing that force of interrogation does not work, that it’s counterproductive. These docs seem to be entirely unaware, not only of the ethics codes, but also of the ineffectiveness of these interrogation strategies, that they never mount a protest.

Beck: What is the relationship between doctors and the military in these War on Terror prisons? I’m sure it’s a very different environment in which to be a doctor as opposed to a hospital.

Miles: The CIA doctors were under an office within the CIA called the Office of Medical Services. That’s not military, that’s CIA.

You had situations where doctors were seeing people with fractures, saying they shouldn’t be made to stand, and the people were standing and the docs weren’t  reporting that the medical regime wasn’t being followed. That’s a form of passive complicity. The docs who supervise and say, “Well, what you should do is use medical saline rather than distilled water when you waterboard people so that you don’t make the blood salts dilute,” that’s active participation.

 

For example, if I flood your lungs and throat with just plain tap water, what happens is the sodium in your blood and the potassium in your blood goes down because of the distilled water. So it’s less likely to be lethal if I flood you with medical saline (the kind of stuff you see hanging on IV bags) because then those electrolytes don’t get changed. From the prisoner’s standpoint, he’s still experiencing a drowning.

 

Beck: We’ve talked about the medical side, but what does it mean that there were psychologists who helped design this program? What role does psychology and that knowledge base play?

Miles: Essentially what happened is that the DOD constructed a deal with the American Psychological Association to craft a new code of ethics for War on Terror interrogations.

[Ed.: The APA has authorized an independent review of allegations that it colluded with the George W. Bush administration on torture, and has stated: “In the meantime, the Board again reiterates the Association’s longstanding policy prohibiting any psychologist involvement in torture and cruel, inhuman or degrading treatment or punishment. There are no exceptions to that policy.”]

The military took two psychologists [Mitchell and Jessen] who took the theory oflearned helplessness, and they decided to apply that to interrogation. Learned helplessness as a model for interrogation has been discredited. Learned helplessness works like this. If you shock a dog every time it turns to the right, then it’ll start always turning to the left. If you shock a dog no matter which way it turns, eventually the dog just lies down and takes it. The theory of this interrogation system was, if we punish these prisoners no matter what, they will become helpless and compliant to whatever we want. That is, they’d give up information.

Beck: Do you think these doctors who were involved are going to be held accountable? Whether it’s through the law or through medical licensing boards?

 

Miles: On the website I maintain, I trace the accountability of doctors around the world since the Nazis, not including the Nazis. Accountability has been slowly building throughout the world. There have been a half dozen docs who’ve been subject to licensing-board hearings, and in all cases the licensing board has declined to get involved. These have been War on Terror cases.

There is a law in the U.S. against torture. Theoretically these people could be charged for violations of that federal law. But the DOJ basically said, “Since we all said this was legal at the time, we’re not going to prosecute them.”

The licensing board in these cases has several options. They can suspend a license, which is the typical punishment around the world, or they can revoke the license. So the licensing board hearings here could address that. Significantly, the American Medical Association still hasn’t commented on the Senate report [as of Thursday]. The AMA is not exerting leadership here.

[Ed.: The AMA’s official policy on torture reads, in part: “Physicians must oppose and must not participate in torture for any reason. Participation in torture includes, but is not limited to, providing or withholding any services, substances, or knowledge to facilitate the practice of torture. Physicians must not be present when torture is used or threatened … Physicians may treat prisoners or detainees if doing so is in their best interest, but physicians should not treat individuals to verify their health so that torture can begin or continue.]

 

Beck: Do other countries have different laws or standards of punishment in these cases?

“The doctors and psychologists were built into the interrogational abuses. It wasn’t a matter of turning off protests, it was a matter of a structured system of complicity.”

Miles: Brazil, Chile, Argentina, and Uruguay have punished bunches of doctors. Rwanda punished bunches of doctors. Rwanda probably punished the largest percentage of its physician workforce of any country on the planet. Then you’ve got countries like Great Britain, Guyana, India, Pakistan, Sri Lanka, Greece, and these countries have punished a token number of physicians, one or two, even though the involvement of physicians in torture has been much more widespread.

 

Beck: Are there any other important aspects of this that we haven’t talked about yet?

Miles: The first question I asked when I saw the Abu Ghraib pictures was, “My god, where were the doctors when all this was going on? How did the government turn off the protests from the medical system?” What I discovered instead was that the doctors and psychologists were built into the interrogational abuses. So it wasn’t a matter of turning off their protests, it was a matter of a structured system of complicity. This has greatly harmed the U.S. medical community’s ability to speak on behalf of doctors who are protesting torture around the world.

 

Let me give you a few examples. There was a psychiatrist in Russia, in the Soviet Union, who was pointing out Russia had built psychiatric prisons to punish dissidents. His name was Anatoly Koryagin. He smuggled out a secret paper in a medical journal called The Lancet, and he was immediately sent to [prison]. The medical community in the U.S. and Europe was able to secure his release.

There was a doctor by the name of Pourandarjani in Iran who told of torture in Iranian prisons. But his testimony in Iran happened [in 2009] after the medical abuses in Abu Ghraib were out. [Ed. Pourandarjani died of an alleged heart attack in November 2009—some human rights groups have called his death “suspicious.”]Our ability to be a leader in these areas has huge consequences for people who are doing very dangerous human rights work around the world. And we’ve totally compromised ourselves.

 

 

 

 

How narco tests gave more misses than hits

 

In the last few years, the city police have used narco-analysis and brainmapping tests as a “secret weapon” against suspects in high-profile cases. However, often the results have been less than satisfactory and in some cases have led to major setbacks.

The Mumbai police’s application to conduct narco-analysis on Suraj Pancholi, son of Bollywoodactor Aditya Pancholi, who was arrested for allegedly abetting actor Jiah Khan’s suicide, has once again brought attention on the much-abused test.

“At times, the police do resort to means, like the narco-analysis tests, as a shortcut to investigation or as a convenient tool to get their way. This should not be encouraged,” said criminal lawyer Majeed Memon. “The facts of this case [Jiah’s suicide] do not justify subjecting the accused [Suraj] to narco-analysis test and is undesirable.”

 

A narco-analysis test involves using sedatives, such as sodium pentothal or sodium amytal, to put a person in hypnotic-like state, rendering him unable to lie. The person then answers only specific questions and the answers are taken to be spontaneous. A narco-analysis test report can only be used as supportive evidence; it is not admissible as standalone evidence in court.

One narco-analysis test that had left the state government red-faced was that of Abdul Karim Telgi, main accused in the fake stamp paper scam case. During the test in 2004, Telgi named leading Maharashtra politicians and of making payments to them. Then deputy chief ministerChhagan Bhujbal had to quit following the revelations. But investigations could not corroborate his statements.

More recently, the police’s efforts to use narco tests to make breakthroughs in serious offences, such as rape and murder, have come a cropper.

Mohammed Ajmeri Sheikh, who was accused of raping and murdering a nine-year-old girl in Kurla in 2010, was subjected to the test with the hope that he would confess to raping and killing other girls in the areas, but the police got no leads. They were unable to file a chargesheet within the stipulated 90 days and Ajmeri got bail.

The other high-profile case involved Vijay Palande arrested for the murder of Delhi businessman Arun Tikku in Lokhandwala in 2012. Palande reportedly confessed to killing aspiring producer Karan Kakkar and dumping the body at Khumbarli ghat near Chiplun. There they stumbled upon the skeletal remains of an identified body. The narco test on Palande remained inconclusive and the crime branch could not identify the skeletal remains.

In other parts of the country, too, probes using narco tests have not been always successful. The results of the tests on Noida dentists Dr Ramesh Talwar and his wife Nupur in connection with the murders of their daughter Aarushi and domestic help were inconclusive.In Hyderabad, the police were unable to extract any information from Abdul Kaleem and Imran Khan, alleged associates of HUJI leaders Abu Hamza and Shahed alias Bilal, accused in the August 2007 twin blasts in that city.

Narco analysis misses!

2012 – Vijay Palande case

Police subject Vijay Palande, an alleged serial killer”, to narco analysis test.

Status: Tests were inconclusive as the police were unable to find the identity of a body they found in Kumbharli ghat.

2010 – Kurla serial rape and murder cases

Police conduct narco analysis tests on Mohammad Ajmeri Shaikh, an accused in the rape and murder of minor girls in Kurla.

Status: Test fail to yield any positive results for the police. Police fail to file chargesheet within the stipulated 90 days and the court releases Ajmeri on bail.

2010 – Arushi murder case.

Narco analysis was conducted on Dr. Rajesh Talwar and his wife Nupur in the Arushi murder case.

Status: The tests were inconclusive and the trial in the case is currently stayed.

2007 – Hyderabad twin blasts

Abdul Kaleem and Imran Khan, accused in the Hyderabad twin blasts case undergo narco analysis tests.

Status: Police fail to get any breakthrough in investigations or suspected connection with the 2005 terror attack on the Indian Institute of Science shootout

2004 – Telgi case

Abdul Karim telgi, the main accused in the multi crore fake stamp scam case was administered narcoanalysis tests. During his tests, Telgi had made allegations against some top politicians from Maharashtra.

Status: While Telgi was convicted in some of the cases, the allegations against the politicians came to naught.

 

Is Narco Analysis a Reliable Science? – Present Legal Scenario In India.

 

The term Narco-Analysis is derived from the Greek word narkç (meaning “anesthesia” or “torpor”) and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. The term narco-analysis was coined by Horseley. Narco analysis first reached the mainstream in 1922, when Robert House, a Texas obstetrician used the drug scopolamine on two prisoners.

 

The search for effective aids to interrogation is probably as old as man’s need to obtain information from an uncooperative source and as persistent as his impatience to shortcut any tortuous path. In the annals of police investigation, physical coercion has at times been substituted for painstaking and time consuming inquiry in the belief that direct methods produce quick results. Development of new tools of investigation has led to the emergence of scientific tools of interrogation like the narco analysis test. Such tests are a result of advances in science but they often raise doubts regarding basic human rights and also about their reliability. Legal questions are raised about their validity with some upholding its validity in the light of legal principles and others rejecting it as a blatant violation of constitutional provisions.

 

A Brief Outline of The Narco Analysis Test-

The narco analysis test is conducted by mixing 3 grams of Sodium Pentothal or Sodium Amytal dissolved in 3000 ml of distilled water. Narco Test refers to the practice of administering barbiturates or certain other chemical substances, most often Pentothal Sodium, to lower a subject’s inhibitions, in the hope that the subject will more freely share information and feelings. A person is able to lie by using his imagination. In the narco Analysis Test, the subject’s inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like state efforts are made to obtain “probative truth” about the crime. Experts inject a subject with hypnotics like Sodium Pentothal or Sodium Amytal under the controlled circumstances of the laboratory. The dose is dependent on the person’s sex, age, health and physical condition.

 

The subject which is put in a state of Hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions. The subject is not in a position to speak up on his own but can answer specific but simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers.

 

Wrong dose can send the subject into coma or even result in death. The rate of administration is controlled to drive the accused slowly into a hypnotic trance. The effect of the bio-molecules on the bio-activity of an individual is evident as the drug depresses the central nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated by the investigating agencies in the presence of the doctors. The revelations made during this stage are recorded both in video and audio cassettes. The report prepared by the experts is what is used in the process of collecting evidence. This procedure is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.

 

Other associated truth finding tests-

Apart from narco test there are also other two kinds of tests which are popularly used on the convict for extraction of truth, these are-

I. Polygraph or lie Detection Test:

It is an examination, which is based on an assumption that there is an interaction between the mind and body and is conducted by various components or the sensors of a polygraph machine, which are attached to the body of the person who is interrogated by the expert. The machine records the blood pressure, pulse rate and respiration and muscle movements. Polygraph test is conducted in three phases- a pretest interview, chart recording and diagnosis. The examiner (a clinical or criminal psychologist) prepares a set of test questions depending upon the relevant information about the case provided by the investigating officer, such as the criminal charges against the person and statements made by the suspect. The subject is questioned and the reactions are measured. A baseline is established by asking questions whose answers the investigators know. Lying by a suspect is accompanied by specific, perceptible physiological and behavioural changes and the sensors and a wave pattern in the graph expose this. Deviation from the baseline is taken as a sign of lie. All these reactions are corroborated with other evidence gathered. The polygraph test was among the first scientific tests to be used by the interrogators.

 

It was Keeler who further refined the polygraph machine by adding a Psycho-galvanometer to record the electrical resistance of the skin.

 

II. P300 or the Brain Mapping Test:

This test was developed and patented in 1995 by neurologist Dr. Lawrence A. Farwell, Director and Chief Scientist “Brain Wave Science”, IOWA. In this method, called the “Brain-wave finger printing”; the accused is first interviewed and interrogated to find out whether he is concealing any information. Then sensors are attached to the subject’s head and the person is seated before a computer monitor. He is then shown certain images or made to hear certain sounds. The sensors monitor electrical activity in the brain and register P300 waves, which are generated only if the subject has connection with the stimulus i.e. picture or sound. The subject is not asked any questions. Dr. Farwell has published that a MERMER (Memory and Encoding Related Multifaceted Electro Encephalographic Response) is initiated in the accused when his brain recognizes noteworthy information pertaining to the crime. These stimuli are called the “target stimuli”. In a nutshell, Brain finger printing test matches information stored in the brain with information from the crime scene. Studies have shown that an innocent suspect’s brain would not have stored or recorded certain information, which an actual perpetrator’s brain would have stored. In USA, the FBI has been making use of “Brain mapping technique” to convict criminals.

 

Narco Analysis in India-

A few democratic countries, India most notably, still continue to use narco analysis. This has come under increasing criticism from the public and the media in that country. Narco analysis is not openly permitted for investigative purposes in most developed and/or democratic countries. In India, the narco analysis test is done by a team comprising of an anesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer, and supporting nursing staff. The forensic psychologist will prepare the report about the revelations, which will be accompanied by a compact disc of audio-video recordings. The strength of the revelations, if necessary, is further verified by subjecting the person to polygraph and brain mapping tests.

 

Narco analysis is steadily being mainstreamed into investigations, court hearings, and laboratories in India. However, it raises serious scientific, legal, and ethical questions. These need to be addressed urgently before the practice spreads further. Narco analysis has become an increasingly, perhaps alarmingly, common term in India. It refers to the process of psychotherapy conducted on a subject by inducing a sleep-like state with the aid of barbiturates or other drugs. In a spate of high profile cases, such as those of the Nithari killers and the Mumbai train blasts, suspects have been whisked away to undergo an interview drugged with the barbiturate sodium pentothal.

 

Narco Analysis from Constitutional & Legal Stand Points-

The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3). It deals with the privilege against self-incrimination. It has its equivalents in the Magna Carta, the Talmud, and the law of almost every civilized country. The privilege against `self incrimination is a fundamental canon of Common law criminal jurisprudence.

 

The characteristic features of this principle are-

-The accused is presumed to be innocent,

-That it is for the prosecution to establish his guilt, and

-That 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.

 

Art. 20(3) which embody this privilege reads, “No person accused of any offence shall be compelled to be a witness against himself”.

 

On analysis, this provision will be found to contain the following components:

-It is a right available to a person “accused of an offence”;

-It is a protection against such “compulsion” “to be a witness”;

-It is a protection against such “compulsion” resulting in his giving evidence against himself.

 

All the three ingredients must necessarily coexist before the protection of Art 20(3) can be claimed. If any of these ingredients is missing, Art. 20(3) cannot be invoked.

 

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. 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 hypnotic state of mind) it should stand to be rejected by the court. The main issue thus is the question of its admissibility as a scientific technique in investigations and its ultimate admissibility in court as forensic evidence.

 

Section 45 of the Indian Evidence Act, 1872 does allow experts’ opinions in certain cases. It reads:

“When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impression, the opinions upon that point or persons especially skilled in such foreign law, or of science, or art, or as to identity of handwriting or finger impressions are relevant.”

However this section is silent on other aspects of forensic evidence that can be admissible in court in criminal proceedings.

 

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 self-incrimination. 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 vs 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.

 

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.

 

Some Notable Events & Cases of Narco Analysis in India-

I. In a 2006 judgment ( Dinesh Dalmia v State ), the Madras High Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said 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.” There are two fallacies in this reasoning. First, if narco analysis is all that it is made out to be by the Bangalore FSL, the accused will involuntarily answer questions posed to him during the interview. The second fallacy is that it is incorrect to say that the accused is merely taken to the lab against his will. He is then injected with substances. The breaking of one’s silence, at the time it is broken, is always technically `voluntary.’ Similarly, it can be argued that after being subject to electric shocks, a subject `quite voluntarily’ divulges information. But the act or threat of violence is where the element of coercion is housed. In narco analysis, the drug contained in the syringe is the element of compulsion. The rest is technically voluntary.

 

II. In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: “No person accused of any offence shall be compelled to be a witness against himself.” Statements made under narco analysis are not admissible in evidence. However, recoveries resulting from such drugged interviews are admissible as corroborative evidence. This is, arguably, a roundabout way to subverting the right to silence — acquiring the information on where to find the weapon from the subject when, in his right senses, he would not turn witness against himself. Arguments have been made that narco analysis constitutes mental torture. It works by inhibiting the nervous system and thus lowering the subject’s inhibitions. It is not difficult to interpret this as a physical violation of an individual’s mind-space. The State police departments are responsible for generating demand for the process. The decision to conduct narco analysis is usually made by the Superintendent of Police or the Deputy Inspector General handling a case.

 

A high-ranking official in the Karnataka Police told The Hindu that police departments in India have poor skills when it comes to collection, collation, and presentation of evidence before the courts. Consequently, when there is enormous pressure on a police department to solve a case, sending suspects to narco analysis not only buys time but also gives the impression that something concrete has been done about the case.

 

III. 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. The bench, which also included Justice R.V. Raveendran and Justice J.M. Panchal, heard the arguments by counsel of various people, including Santokhben Jadeja from Gujarat, popularly known as ‘Godmother’, and some accomplices of fake stamp paper case accused Abdul Karim Telgi. 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.

 

During the arguments, Vahanvati justified the use of these three tests, saying they have the legal mandate under Section 53 of the Criminal Procedure Code (CrPC), which lists a host of various modern techniques like DNA fingerprinting and collection of blood samples as perfectly legal tools to probe a crime. He said the term ‘such other tests’ occurring in the explanatory note of the Section 53 includes these three tests too.

 

‘If these tests are properly considered to be steps in the aid of investigation and not for obtaining incrimination statements, there is no constitutional infirmity whatsoever,’ said Vahanvati. ‘These tests are scientific methods in furtherance of investigation. All these tests are considered to be the part of the process of collection of some subsequent evidence.

 

‘These tests may provide some clues to the investigative agency to collect some evidence but the statements given by the accused against themselves during these tests are not of any evidentiary value,’ clarified the law officer.

 

But Dave during his arguments, contended that parliament never intended to include these tests as tools for probe as Section 53 was last amended in 2005, when a list of various modern scientific techniques was included in it as legal tools for investigation. Dave also contended that the use of these three tests as tools of investigation is not validated by Article 20(3) of the constitution, which says: ‘No person accused of any offence shall be compelled to be a witness against himself.’

 

IV. In Shashi murder case, Court allows narco-analysis. Vijaysen Yadav, the main accused in the disappearance and murder case of Faizabad law student Shashi, has gone through polygraph and narco-analysis test from January 12 to 26. Faizabad Chief Judicial Magistrate Shailesh Tiwari permitted the police on Friday to conduct the tests at the Central Forensic Laboratory in Bangalore.

 

In his order, the CJM said the tests on Vijaysen will be conducted in judicial custody and prohibited investigating Officer Sharat Chandra Pandey from intervening in any matter during the process of tests. The court also asked him not to accompany Vijaysen to Bangalore.

 

V. The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra, 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 as mentioned above, allowing the SIT to conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul Karim Telgi. The verdict 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 any “statement” being made and the statement made under narco analysis was not admissible in evidence during trial. The judgment also held that these tests involve “minimal bodily harm”.

 

VI. Narco-analysis of Moninder Singh Pandher, had started on Tuesday, January 09, The narco-analysis test of the prime accused in the Noida serial murder case Moninder Singh Pandher was conducted at the Directorate of Forensic Laboratory. Pandher and Koli have been accused of serial killing of women and children in Nithari village, in Noida, Uttar Pradesh. The Nodia police had brought Pandher and his servant Surendra Koli to DFS on January 5 for forensic tests. The tests are expected to go on for approximately eight hours, the sources said.

 

VII. A court in Kerala recently pronounced that no court order is required to do a narco analysis, Disposing of a petition filed by the CBI seeking permission of the court, the magistrate said 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.

 

The Degree of Admission of These Truth Finding Tests in Court-

Lawyers are divided on whether the results of Narco Analysis and P300 tests are admissible as evidence in courts. “Confessions made by a semi-conscious person is not admissible in court. 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 assess its admissibility,” advocate P. R Vakil told rediff.com. “Under certain circumstance, a person may hold a certain belief. By repeatedly thinking about an issue in a particular way, he begins to believe that what he is thinking is right. But it need not necessarily be the truth,” Vakil explained.” Results of such tests can be used to get admissible evidence, can be collaborated with other evidence or to support other evidence. But if the result of this test is not admitted in a court, it cannot be used to support any other evidence obtained the course of routine investigation.”

 

Criminal lawyer Majeed Memon said, “If the courts give permission to conduct these tests, then only it can decide the admissibility of the test results and other related evidence. Such reports can be used as evidence or to support other evidence.” Another criminal lawyer Sham Keswani has a different view. “Such tests don’t have any legal validity. They can only assist the police investigation.” But, in case a person is not affected by the chemical, he might take some wrong names (to mislead investigators). The results of such tests can be used to support other evidence,” he said.

 

Conclusion-

Law is a living process, which changes according to the changes in society, science, ethics and so on. 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. The criminal justice system should be based on just and equitable principles. The issue of using narco analysis test as a tool of interrogation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be clearer in the near future. In a situation where narco analysis is gaining judicial acceptances and supports despite being an “unreliable & doubtful” science, we have to seroiusly rethink about its legal and constitutional validity from human rights perspective.

 

Violence and the ethical responsibility of the medical profession

Amar Jesani

 

 

Prof. Upendra Baxi, a well known expert on law and a former vice chancellor of Delhi and South Gujarat universities, in his comments on Women’s Studies in the ICSSR Newsletter seven years back, made some incisive and disturbing comments on the coverage of violence in social science discourses in India. “Mainstream social sciences in India have altogether ignored the fact that India is a very violent society. There do not exist even pre- theoretical discourses on violence in India. Compared with the practice of violence in India, there is a total denial of discourse on violence.”1

Health care professionals have fared even worse than social scientists.

The concern for violence is conspicuous by its virtual absence in medical discourses. The special medical needs and rehabilitation of victims and survivors of violence are hardly ever discussed by doctors. Is this because health care workers do not come in contact with the victims and survivors of violence? The answer is a categoricalno. Violence invariably inflicts physical or psychological trauma and in any violence, the victims and survivors come in contact with health care workers, the last and extreme contact being established during autopsies on victims of violence. The apathy of medical personnel is all the more disturbing simply because of the many professions in our country, medicine has the greatest claim to nobility, compassion, humanity, rationality and scientific attitudes.

Unlike some extremely backward countries, we have nearly a million (9,27,624 in 1991) formally trained doctors, 42% of whom are trained in modern medicine – a ratio of one doctor for less than a thousand persons in the country as whole and one doctor for less than five hundred in the urban areas. An estimated 85% of all trained doctors work in the private sector3. Yet, the conscious response of the profession to one of the bigger epidemics of violence in recent times in our country has been grossly inadequate. We have either shown plain indifference or clumsy and ad hoc crisis management when faced with violence. This does not auger well for a profession claiming to have scientific basis for its practice. The implied failure in discharging social responsibility raises ethical questions for the profession at large in the country.

Violence and the medical profession
The science of medicine incorporates sociological and epidemiological understanding. Medicine, and for that matter any science, not geared to real social andepidemiological issues loses its humanitarian content. The violence described and documented by voluntary groups is not that by common criminals. The violence covered here includes the deprivation of human and democratic rights, is associated with social and political mobilisation, is often inflicted on helpless, oppressed, unarmed or innocent persons and has notable ideological underpinnings. There are strong, extreme and sometimes genuine differences within the social groups on the attitude society should take on the subject. One finds strong defenders (and opponents) of third degree methods, an euphesism for torture, almost routinely employed by the police. Similar divergence prevails in debates on caste, communal, gender and other forms of violence.

One’s social position and ideological orientation, rather than the fact of the violence and the plight of victims and survivors, seem to determine the stand taken on violence. Of course there is also a big segment that has either become emotionally numb due from excessive exposure to violence or is indifferent as at present it is not directly affected.

Such trends prevail in the medical profession as well. To what extent is the attitude of doctors to violence shaped by their social positions and ideological orientation? There has been very little research on doctors’ attitudes on violence and the extent to which individual biases get reflected in medical practice. Some indication on what is happening at the ground level within the profession is available from the recent reports of various local, national and international groups. These reports were prepared for specific purposes and their findings on the acts of commission and omission cannot and should not be generalised. Nevertheless, they do serve as pointers. The few examples given below on postmortems and torture and rape are purposefully selected by me in order to illustrate issues. I understand that there is always the other side to every story.

(a) Autopsy: The way autopsies are conducted, findings recorded and access to reports denied has been a bone of contention for long. There have been reports in the press about the pressure exerted on doctors by the police to give findings favorable to them. The death of Dayal Singh in police custody made the Resident Doctors’ Association of All India Institute of Medical Sciences (AIIMS) protest against such pressure. This is referred to in Amnesty International’s (AI) report titled Torture, Rape and Deaths in Police Custody4. The autopsy reports on two nuns murdered in a Bombay suburb and the role of doctors in unscientific inter F retation of its findings is also fresh in many minds5. On study of autopsy reports on victims dying in police custody and on so- called deaths during ‘encounters’ in the past few years, I found several disturbing issues which have grave implications on the unethical behavior of doctors conducting autopsies:

(1) Autopsies are generally conducted by police surgeons in police hospitals to which lay people and other doctors have no access. An independent medical audit of work being done there is unheard of. This situation is neither conducive to good science nor to ethics.

(2) A study of autopsy reports (no such study is available, hence the need for it) of victims of violence would probably show incomplete and unscientific documentation. The Supreme Court had to order, in 1989, that all postmortem examinations held at AIIMS be standardised. On making inquiries I learn that this Court order has remained inadequately implemented.

There is a crying need to adopt (with suitable modifications) the United Nations’ manual on the effective prevention and investigation of extralegal, arbitrary and summary executions.! Such routine, standardised and scientific investigation by the medical profession would go a long way in checking arbitrary killings and in upholding medical impartiality and neutrality’

(3) There is also need to make the whole process more accessible to other doctors and the public. The profession could allow a doctor appointed by the relatives of the deceased to remain present at autopsy. They should make the official report available to the family doctor and the patient’s relatives. This is an issue on which the profession can easily assert its authority.

(b) Torture and rape: There have been numerous official denials that the so- called third degree methods of interrogation or torture are practiced by our police and security personnel. The evidence accumulated so far does not support such a claim. Some of the retired police officers, reared in the old school of correct policing, have publicly criticised the ‘new methods of policing’ which condone the use of torture, illegal detention and tampering with records and in worst cases even condone execution of hard core criminals by police officers7.

AI’s report (1992) cites 13 cases of custody deaths due to torture in the period 1985- 89 in Maharashtra. A Bombay newspaper reported a study by the prestigious Karve Institute of Social Work, Pune giving the toll of custody deaths in Maharashtra in 1980- 89 as 1558. On inquiry I find that of these 155 deaths, 102 had taken place in the five year period 1985- 89 for which AI had reported only 13. On analysing the causes of the 155 custody deaths, I find that only 9.7% (15) were admitted as due to police action, 44.5% (69) were attributed to suicide or acts of the accused, 7% (11) to acts of the public, 22.6% (35) to disease and illness. 13.6% (21) were termed natural deaths and in 2.6% (4) the cause was not known or record not available. I was astonished to learn some of specific causes listed: alcohol consumption (9 cases), hanging (45), jumped in well (3), jumped under the train (2), jumped under the awtorickshaw (3), jumped under the bus (l), fell from the cot (l), skin disease (l), giddiness (l), unconsciousness (1) and so on. Given the norm that every death in custody ought to be investigated- and proper autopsy done, such causes are not only incomprehensible but also lead to suspicion about a larger proportion of deaths due to torture.

In an investigation of death in police custody in Bombay, I, along with two journalists and a lawyer, found that the young victim accused of petty theft was in the course of interrogation brought to the hospital in a serious condition with, as per hospital records, inflicted injuries on his wrists and thighs typical of torture, bloody vomiting, pain in the region around kidney etc. He was given some treatment and asked to go back to his cell by the doctor. It was also found that the doctor had taken case history and examined’his patient in the presence of the police officer who had accompanied the victim.

The doctor did not consider the presence of the police as violating the doctor- patient relationship. He insisted that he did not suspect torture as the victim never reported it to him. The victim died in his cell.

Similar findings were made by us in an investigation of a victim of gang rape wherein, inspite of the visible signs of injuries around the vagina, which could make any medical person suspect rape, the male doctor turned away the patient after treating her injuries simply because the woman could not tell him that she was raped’. The woman had reported rape to the nurse on duty but could not communicate this to the male doctor.

In another case of custodial gang rape and torture of a tribal woman by police in Gujarat, the commission of inquiry constituted by the Supreme Court found that two doctors at the government hospital were guilty of shielding the policemen and issuing a false certificate10

These examples only represent the tip of the iceberg. Doctors who come in contact with survivors and victims of violence are not always conscious accomplices in ignoring or covering up the cases. I have been given the following reasons for non- reporting and conspicuous silence by medical doctors on torture and rape:

(1) A section of doctors involved are plainly ignorant about this aspect of medical work. If it is true that it never occurs to a doctor that a policeman should not be allowed to remain present during the doctor- patient interaction, or that certain signs and symptoms should make him/ her suspicious of possible torture, it shows crass ignorance in the profession and a grave lacuna in their training.

(2) Another section is indifferent to the plight of sufferer due to their own social biases against the victims and survivors. Such indifference is also produced by social pressure to conform to the dominant belief. In cases of torture inflicted on persons labeled as terrorists, I have found doctors faithfully treating the injuries of the victims but showing great reluctance in mentioning torture due to the fear of being seen as opposed to the state’s efforts at fighting terrorism and separatism.

(3) A third section simply believes that by being in the employment of the government, the police department or the prison, they are bound by the orders of their superiors and feel that the code of their service does not allow them to ‘blow the whistle’.

The profession has failed to take the unequivocal position that when a doctor has to choose between an administrative order and professional ethics, the latter must prevail. The profession has also failed to protest when doctors are transferred as punishment for cri ticising gimmicky and unscientific measures taken by the authorities during epidemics, or when security forces harass and raid hospitals, interfering with the treatment of patients as in Kashmir11. Such lack of collective assertion of professional independence and neutrality on crucial issues has left individual doctors defenseless, cynical and by default subservient to the authorities.

(4) Another reason for doctors’ apathy to these issues is their unwillingness to ‘get involved’. Many remark, “We are doctors. We treat illness. We are not interested in torture or rape.” This is both inadequate science and poor ethics.

Treatment, rehabilitation and documentation
Recognition of the fact that the reported instances of torture represent only a tip of the iceberg emphasises the need to document the problem in a systematic manner. There is a need to put together experiences in treatment and rehabilitation of such victims, create a clearing house for such information to be disseminated among interested professionals, and thus systematise corrective medical intervention.

This would also provide precious information on the extent of problem encountered, the individuals and agencies (state, terrorists, armed groups, gangs) involved in torture, type of people affected, type of torture methods used and so on. This information in turn would sensitise the profession and make it easier for medical associations and groups to successfully campaign for rooting out conscious or unconscious complicity of doctors in torture or its cover up. Such information will also sensitise other professionals in the media, law, social work etc. to play active and meaningful roles in creating public awareness, in punishing the guilty and in rehabilitating survivors.

Code of medical ethics and torture
The code laid down by the Medical Council of India is a good but greatly neglected document. Despite debates about commercialisation and sensational revelations in the press on various allegedly unethical practices by doctors, very little has been done by the medical associations to popularise and enforce this code.

Although the principles enunciated in the code are universal and exhort doctors to refrain from participating or colluding in anything that harms the individual, there is a need to make them specific and directive, particularly in relation to the victims and survivors of violence. This could be easily done by incorporation of the international declaration on the subject in our code.

 

3rd Degree Torture by Police in India

http://sites.google.com/site/sosevoiceforjustice/3rd-degree-torture-by-police ,

 

 

 


Editorial : NARCO-ANALYSIS – RIGHT OR WRONG?


The advances in science must be used by the police to find out the
truth, to solve the mysteries of the crimes. It is the better option
for both investigation / interrogation than the classical
interrogation method involving third degree torture, where in the
accused breaks -down & blurts out the truth, usually, in most of the
cases innocents unable to bear the torture confesses to the crimes
they have not at all committed. The scientific tools of interrogation
namely Narco-analysis . Brain mapping & polygraph Tests must be made
mandatory for interrogation. The perpetrators of third degree torture
i.e. Police Military personnel must be punished severelly. Not just
on innocents, even on proven criminals police have no rights to
torture. It is grossly inhuman & illegal.


At present, there is certain bias in the usage of scientific
interrogation tools:-


1) Generally everybody is afraid of police & their corrupt practices.
Even innocent persons are frightened of false fix-ups & third degree
torture by police. This fear shows up in their heightened anxiety
level, changes in their blood pressure, respiration, heart-beat etc.,
There are chances of misinterpreting this as the “Fear of a criminal
of being caught”


2) These scientific tools are in the hands of police only. Therefore
it is biased towards the police or prosecution in a case. Forensic
science labs where these scientific interrogations are conducted are
under the control of Police department . Fundamental objective of
police is to prove their case, the prosecutions stand point rather
than finding out the truth. Sometimes, the stand points of
prosecution police are influenced by caste, political & monetary
considerations. This bias reflects in the preparation of
the “Questionnaire by the Interrogator” The interrogator if he wants
to bring out a negative image of the accused before the court, he
prepares the questionnaire such that only negative issues come out as
the answers. If the accused has got political patronage & has paid
hefty bribe to the police questionnaire is prepared such as to bring
out a positive image, to highlight innocent image of the accused.
Leaving out all other related questions, which brings out truth, a
negative image of the accused. The police are the one who decide the
fate, destiny of the accused.


3) Every human being has two personalities with in his sub –
conscious mind one personality is evil, selfish & craves for all
material pleasures. The other personality is good , humane & sociable
one. Whenever an issue comes up before a human being , whenever a
human being sees, reads or hears a subject two opinions are
formulated about it by him. One by his evil, selfish ego the other by
his good, humane self .A perfect human being, a social being is one
who controls his mind, contains the evil influences of his selfish
self and follows the guidance of his good self. This readily
expresses itself through good humane social actions. A criminal is
one who does not have control over his mind and acts according to the
evil guidance of the selfish self.


There are chances of mis-interpretation during scientific
interrogation . If you expose only evil self you will get a negative
image or else if you expose only the good self you will get a
positive image of the accused. For a balanced view, you have to see
the both evil-self & good self of the accused together with his past
& present actions.


4) At present only it is the prosecution who can use these scientific
interrogation facilities, but not the defence.
In the fake stamp paper scam during Narco Analysis , king pin Mr.
Karim Lala Telgi blurted out the truth – gave out the names of his
VVIP accomplices, Police accomplices, his business details, so far so
good.

 


Hereby I do request you to order both the union government & all
state governments :-


1) To keep the forensic science laboratories under the control of
autonomous bodies like National Human Rights Commission.


2) To make the scientific facilities of interrogation available for
both the prosecution & the defence of course, for a fee.


3) To enact legislation to subject the corrupt investigating officer,
corrupt public prosecutor, corrupt presiding judge of the case, etc.,
to scientific interrogations, by both the defence & prosecution.


4) To factor in the allowances for the natural fear for police (for
their corrupt, ruthless, devil face)


5) To create an unbiased impartial atmosphere free of fear or favour
to conduct the scientific interrogation.


6) To enact guidelines for scientific interrogation for framing
questions to bring out both good & evil self in the sub conscious to
have a balanced view of the man under question together with his past
& present actions .


7) To make it mandatory for all cases including VVIPs .

 


In various cases scams, involving VVIPs cases drag on for years.
Public money is wasted through waste of deliberations of the house (
Parliament, Legislative Assembly), Waste through constitution of
Parliamentary committees , Judicial commissions, why not all those
VVIPs accused of involvement in scams subjected to tests like Narco
analysis, poly graph, Brain finger printing etc., So that L K Advani
& Murali Manohar Joshi will tell about Babri Masjid demolition, Sonia
gandhi family will tell about Bofors, George Fernandese about
Tehelka, Raja about  telecom tenders, Lallo Prasad Yadav about fodder scam. The
scam tainted VVIP list goes on. Why not these VVIPs are subjected to
scientific interrogation with unbiased questionnaire?

 

Jai Hind. Vande Mataram.

 

Your’s sincerely ,

 

Nagaraj.M.R.

 

 

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FORENSIC SCIENCE LABORATORY   BANGALORE  INDIA

 

 

BANGALORE: Once the first choice for narcoanalysis tests, the Forensic Science Laboratory in Bangalore is now creaking under the burden of 300 pending requisitions and the absence of an expert to conduct them.

So far, Bangalore FSL has conducted over 900 narcoanalysis tests, which were mostly ordered by various courts across the country.

These have yielded some positive results and in at least 12 judgments of various high courts referred to the FSL narcoanalysis test reports.

In a recent judgment in the Ajay Kumar Pal versus State of Jharkhand on March 16, the Supreme Court held that the results of polygraph, narcoanalysis, BEOSP/ brain mapping and fingerprinting have been based as evidence to deduce the term ‘the case of rarest of rare’ to uphold the death sentence.

The services of the Bangalore FSL have been roped in to check Simi activists in Karnataka, blasts on Mumbai trains, in Hyderabad and Malegaon. From Abdul Kareem Telgi to underworld don Abu Salem and suspects in the Arushi murder case which stunned Delhi and ViniVinc Sastry are some of the high-profile cases in which narcoanalysis was done by Bangalore FSL.

However, things began going wrong during the trial of the Sister Abhaya case in Kerala. The CBI charged that the narcoanalysis report was tampered with and fingers began to be pointed at FSL officials.
FSL Assistant Director Dr S Malini, who used to conduct narcoanalysis, also ran into trouble over her date of birth in certificates as well as the procedure by which she was appointed. She was discharged the duty and the post has been vacant since then.

FSL director Dr Mohan told TOI that the FSL would get consent from the accused before conducting the tests. “We seek court permission and follow the guidelines laid down by the National Human Rights Commission also. However, we do not have experts now and therefore don’t conduct these tests,” he added.

 

 

Fake documents: Govt sacks FSL’s Dr Malini

 

Bangalore: Bowing to opposition demand in the legislative council, the state government, on Wednesday, sacked Dr S Malini, assistant director of the Forensic Science Laboratory here, on charges of submitting fake documents that furnished wrong information about her caste, and educational qualification for joining the service.

Janata Dal (Seculer) leader MC Nanaiah, who raised the issue in the council, demanded the government to immediately sack Dr Malini from service.

He stated that Malini had not only submitted false caste records, but also fakecertificates of educational qualification, including SSLC marks card.

She is also accused of tampering with documents and brain mapping reports in Sister Abhaya murder case of Kerala.

Nanaiah even drew home minister VS Acharya’s attention to a December 26, 2008 letter written by former director-general of police R Sri Kumar to the principal secretary, home department, to discharge Dr Malini from service.

Butno action was taken as Dr Malini was protected by influential persons in the ruling BJP government, Nanaiah alleged.

In his letter, the former DGP had accused Dr Malini of leaking narco test results conducted on Al Badr extremist Fahad Ali to the media. He also accused her of professional impropriety.

However, a probe by the Corps of Detectives could not establish any impropriety on the part of Dr Malini.

Earlier, questions were also raised on her recruitment through a special drive.

 

 

 

CBI To grill Dr.Malini of FSL Bangalore

 

Kochi, Friday, January 30, 2009: The CBI sleuths have informed the Kerala High Cout that they will once again interrogate Dr.S. Malini Assistant Director of the Forensic Science Laboratory (FSL), Bangalore once again to clear the air regarding the narco –analysis CDs.

Earlier, the investigating agency had alleged that narco analysis expert, Dr Malini who conducted narco test on three persons Fr Thomas Kutty, Fr Joseph Puttrukail and Sister Steffi in October 2007 had tampered with the CDs containing the video graphed procedure of the tests conducted on suspects in Sister Abhaya murder case. The agency in its submission said that she had tampered with the CDs twice on October 22, 2007 and on October 24, 2007. The agency said that a CD given by the FSL, Bangalore had three reports of which two were nowhere connected with Sister Abhaya’s murder. However the Court on August 5, 2008 had communicated to Director FSL, Bangalore to send the CDs of the entire procedure to Satheesachandran, Registrar General, Kerala High Court.

However the Court on August 5, 2008 had communicated to Director FSL, Bangalore to send the CDs of the entire procedure to Satheesachandran, Registrar General, Kerala High Court after which the Court had cleared Dr Malini once again accusing the CBI of misleading the murder case.

 

 

Manual Scavenging: Must Be Eradicated Right Away

By Ram Puniyani

Indian society is riddled with many evil practices, some of which tantamount to atrocity on one or other section of the dalit/deprived sections of society. One such atrocity is the manual scavenging; the removal of human excreta by humans, with the minimum aid of brooms, metal scarpers and buckets. This practice was officially supposed to have been banned in 1993 by the Government of India. Official lapses and apathy apart, the surveys by the activists working against this practice show that even now over 14 lakhs of scavengers are still suffering ignominy and nearly 95% of these workers are women. These scavengers are the untouchables section of dalits, who have been trapped in this occupation as a birth based work. The States have not taken the act of abolition of this practice seriously and even till 1999-2000 many a States had not notified the act. It is in this light that the social action group Safai Karmachari Andolan has given a call for abolition of this atrocity by the end of 2010.

The manual scavenging is an offshoot of the untouchability practiced in India. Many feudal societies have seen the birth based hierarchy of caste but the Indian caste system has been legitimized through Holy Scriptures to make it a religious phenomenon. Many a factors have contributed to emergence of caste; Race, class and religion. Currently the race theory does not find much favor with the serious scholars of caste. The major contributing factors have been the economic and religious. In his famous phrase Ambedkar points out that “caste is not a division of labor; it is a division of laborers”. He puts more emphasis on the ideological and religious factors. In his analysis these factors are interwoven as civilizational factors which influenced and resulted in social changes leading to formation of caste system.

The evolution of caste society was a slow process. Its continuance was secured by making it hereditary. The primitive taboo on eating together and intermarriage became caste law, which in turn led to marriage limits and elaborate rules of endogamy and exogamy. The continuance of caste system depended on vast network of sub-castes, which were connected with occupations. This sub-caste – jati – came to have more relevance and became the basis of functioning of Hindu society. As caste became hereditary with close connection between occupation and sub-caste, it resulted in an automatic check on individual moving up in the hierarchy of castes

Untouchablity is the outcome of this caste system and manual scavenging is the subhuman expression of the same, that being amongst the worst of atrocities perpetrated by the upper caste on the low castes. This is the key concept inherent in purity-pollution, and rebirth theories which were used to enslave the low caste and keep them tied to the subhuman occupation. Khalid Akhtar (Hardnews Media, March 2008) points out that the earliest references to it are found in Narada Samhita and Vajasaneyi Samhita. In Narada Samhita one of the 15 duties listed for untouchables, one is the removal of human excreta. In Vajasaneyi Samhita, Chandalas are referred to as slaves engaged in the disposal of human excreta. Even other dalits look down upon them and all the avenue of social interaction in any form were denied to them.

Excavations at Lotha in Gujarat show that Harappan civilization did have water based sanitation system. The toilets were connected by drains and had manholes and chambers. With the decline of Harappan civilization this technology went into oblivion.

The system of manual scavenging continued in medieval times as well. While the Muslim kings did introduce different techniques at places. As such the communal politics, as is its wont, is trying to propagate that since the Muslims used Burqua, women could not go out to jungles, they introduced manual scavenging. This is another way of putting the blame of internal problems to external source. This is far from truth. Observation and research into the Mughal forts’ sanitation system shows that they had small outlets in the bathing rooms of Mughal forts which were used as toilets. The waste from these toilets was carried by gravitational force to the ramparts with the help of water. This technique has been seen in the Red Fort in Delhi, in the palaces of Rajasthan, in Hampi, Karnataka and in Thiruvananthapuram, Kerala.

The British did claim that they have come here, carrying the “White Man’s Burden” of civilizing the East, but as far as retrograde social practices were concerned they were unconcerned about those. In the case of manual scavenging they put their seal of approval on this by systematizing it and creating the posts of scavengers in army, railways, municipalities and big towns. Barring few places they did not put the sewer lines in most of the places, as they observed that already the system of scavenging is in place. Due to industrial changes, end of craftsmanship and pauperization of a section of society, some of them forced to join in this work.

Ambedkars’ rebellion against caste and his prescription on ‘Annihilation of caste’ and Mahatma Gandhi’s efforts to eradicate untouchabilty, experiments with new designs of toilets, had a minimal effect on the total social situation, as the social transformation has been painfully slow. After partition the untouchables from Pakistan were not permitted to come to India and Indian Government did not try much for the safe passage of this group to India. And here the situations continued as it has been due to which the life was a total humiliation for this section of society persisted. During last many decades the pressure of the social movements is forcing the State authorities to abolish this practice and rehabilitate the scavengers. As usual the State response has been half baked and there is a lack of effectivity in the same. The step of the social movements to do all, advocacy, campaign and other pressures, to ensure that this practice is put to
rest is very significant.

One knows that the popular opinion and efforts of all sensitive people to end this are needed at this point of time to remove this blot on Indian society, irrespective of its sanction by the Holy Scriptures and traditional practices. Enough is enough, this atrocity on a section of our society has to be stopped forthwith, they need to be rahabilitated to the life of dignity, come what may.

 

 

 

Narcoanalysis and some hard facts

SRIRAM LAKSHMAN

Narcoanalysis is being mainstreamed into investigations and court hearings in India. This raises grave scientific and ethical questions.

BY SPECIAL ARRANGEMENT

Narcoanalysis is conducted in a hospital in the presence of a physician and an anaesthetist who administers the barbiturate. A clinical psychologist questions the suspect. Here, a suspect in a 2004 murder case in Bangalore is being “narcoanalysed”. The court acquitted her as narcoanalysis could be used only for investigation and not to convict suspects.

NARCOANALYSIS has become an increasingly, perhaps alarmingly, common term in India. It refers to the process of psychotherapy conducted on a subject by inducing a sleep-like state with the aid of barbiturates or other drugs. In a spate of high-profile cases, such as those of the Nithari killers and the Mumbai train blasts, suspects have been whisked away to undergo an interview, drugged with the barbiturate sodium pentothal.

This practice has also garnered support from certain State governments as well as the judiciary. Politicians have fallen into the habit of hurling the term `narcoanalysis’ at each other. In 2006, Karnataka Congress leader H. Vishwanath suggested that Chief Minister H.D. Kumaraswamy and his colleagues undergo narcoanalysis in the Chenamma Trust bribery case. The Home Ministry’s forensic science directorate has yet to withdraw a controversial manual on best practices in narcoanalysis in which it states that facilities for narcoanalysis need to be expanded. There is also talk of the National Institute of Mental Health and Neurosciences (NIMHANS) in Bangalore working with the Gandhinagar Forensic Science Laboratory (FSL) to train personnel in this technique. It is not surprising then that there are about 300 people in the narcoanalysis queue at the FSL, Bangalore, alone.

It would appear that the narcoanalysis beast has acquired a life of its own. It is increasingly knocking at the doors of courts and finding ready acceptance as a device to get at the truth during police investigations, though its scientific basis and value are under strong challenge. It is for this reason that the scientific, legal, and evidentiary issues relevant to the narcoanalysis debate need to be discussed critically.

Narcoanalysis is rarely used for therapeutic purposes today. The reliability of the practice has been questioned by leading psychiatric and forensic experts. Dr. P. Chandra Sekharan, the highly regarded former Director of the Forensic Sciences Department of Tamil Nadu, has characterised the practice as an unscientific, third-degree method of investigation. Nevertheless, sections of the police in India and those connected with investigative agencies consider it the golden ticket to solving difficult cases.

Far from being novel, truth serums have been in use since the early part of the 20th century. The use of the drug scopolamine for criminal narcoanalysis was first reported in 1922. Barbiturates, which have been in use since the beginning of the last century, were being used in psychotherapy for narcoanalysis by 1930 along with other methods of therapy. During and after the War years, United States armed forces and intelligence agencies continued to experiment with truth drugs. The Central Intelligence Agency (CIA) has admitted to using these as part of its interrogation tactics, and a declassified CIA interrogation manual does concede that while truth drugs can be useful in overcoming resistance not dissolved by other methods, the actual content of what comes out during the interrogation can be “psychotic manifestations… hallucinations, illusions, delusions or disorientation”.

At the 1977 U.S. Senate hearings on its secret mind-control project, the CIA acknowledged that “no such magic brew as the popular notion of truth serum exists”.

It also said that even under the best conditions, the barbiturates would elicit an output contaminated by deception, fantasy, garbled speech, and so on. Studies have shown that persons who make truthful confessions are those who were likely to confess had interrogators persisted in using regular methods, and that persons who lie can continue to manifest a lie even under the influence of a so-called truth serum. InThe Rape of the Mind, author and physician Joost Merloo says that the investigator can also induce and communicate his own thoughts and feelings to the suspect.

Scientific literature indicates that if narcoanalysis has any extra-therapeutic uses, it may be in making a suspect feel that he has revealed more than he actually did. With repeated questioning, it may be possible to reduce ambiguities although these cannot be eliminated.

Ban in the U.S.

T.L. PRABHAKAR

Abdul Karim Telgi, the kingpin of the stamp paper scam, being brought to a Bangalore court in 2003. Telgi underwent narcoanalysis in Bangalore.

In 1989, the New Jersey Supreme Court (State v. Pitts) prohibited the use of sodium amytal narcoanalysis because the results of the interview were not considered scientifically reliable, although there was some use to the interviews (“Educing Information” by National Defence Intelligence College). The court opined that subjects are susceptible to filling in gaps in stories with fabricated detail (hyperamnesia), or believing in false events (memory hardening), and hypnotic recall, where thoughts of non-existent events become embedded in the memory. (“Gaps to fill”, Frontline; October 20, 2006).

Scientific scepticism and the absence of controlled studies have not deterred Indian investigating agencies from running to the FSL in Gandhinagar or, more likely, Bangalore. FSL Bangalore is the de facto hub for narcoanalysis for various police departments across the country. Narcoanalysis is done using sodium pentothal, in conjunction with three other tests – psychological profiling, polygraph (`lie detector’) tests, and brain mapping. Polygraph tests, which one can learn to `pass’ or `fail’, are used for screening and confirmation purposes only. Brain mapping, a premature if promising technique not entirely free from controversy itself, indicates whether a subject’s brain stores experiential knowledge about a certain object. Narcoanalysis is used when investigators need oral elicitations from a suspect. For instance, if brain mapping indicates that the suspect stores information about a blue getaway car allegedly used in the crime, then narcoanalysis, according to the FSL, Bangalore, is used to provide information such as the number of the car, where it is parked, and so on.

Narcoanalysis is usually conducted at Victoria Hospital, Bangalore. In addition to FSL psychologist Dr. S. Malini, who questions the suspect, there is an anaesthetist who administers the drugs and a physician who certifies the subject’s fitness for the test. The psychologist also gathers and collates information such as first information reports (FIRs), autopsy reports, and biographical data when preparing for the test. The entire procedure is video-recorded and the subject usually signs a consent form.

Dr. B.M. Mohan, Director of FSL, Bangalore, attributes a 96 to 97 per cent total success rate to narcoanalysis. Included in the definition of total success rate is the discovery of information that either triggers a relevant section of the law or may be cross-verified with other tests (such as brain mapping). Assessments are aided by questionnaires handed out to investigating officers. For instance, if the suspect speaks about a gun hidden in a coconut grove, and this leads the police to recovering the weapon (which is admissible as evidence), it would count towards the success rate. Additionally, if someone mentions a blue car and this is recognised as being stored in the suspect’s brain using brain mapping, that too would count towards the total success rate.

G.P. SAMPATH KUMAR

Abu Salem (right), one of the accused in the 1993 Mumbai serial bomb blasts case and a close associate of the underworld don Dawood Ibrahim, after a narcoanalysis test at Bowring Hospital, Bangalore, in December 2005.

The abundance of scientific literature and forensic and psychiatric opinions on narcoanalysis does not shake Dr. Mohan’s claims about the reliability of the practice because he says he has the data from some 300 cases to prove his contentions. Findings that point to the unreliability of narcoanalysis, according to Dr. Mohan, are usually based on studies of scopolamine and sodium amytal and are not applicable to sodium pentothal, which is used by the Indian laboratories. “Many people say there are fantasies in the narco. I totally disagree because they do not know the pharmacokinetics of pentothal sodium,” he says, adding that during narcoanalysis the tendency is to sleep if not questioned, rather than hallucinating or fantasising.

There are two problems with this argument. Using sodium pentothal is not a new advance in narcoanalysis. Sodium pentothal was used for several decades in psychotherapy, according to Dr. C.R. Chandrashekhar, Deputy Medical Superintendent and Professor of Psychiatry for almost 30 years at NIMHANS. “Thiopental sodium will not make him [the patient] tell everything that is inside him. There is no guarantee that he will tell the truth,” he says. The psychological fraternity around the world has consequently stopped using pentothal in all but the rarest cases, and if it is used, it is always with the consent of the patient.

Dr. Mohan’s contention that it is difficult to manifest fantasies in narcoanalysis is also open to debate. False memory is an extremely well-researched area, according to Dr. Chittaranjan Andrade, a Professor of Psychopharmacology at NIMHANS, with at least 25 years of experience. “Even a person who is fully conscious can firmly believe in something that has not happened. There is a lot of research done on this subject,” says Dr. Andrade.

Psychiatrists hold that some 50 per cent of all individuals are suggestible even while fully conscious, meaning they can be made to believe events that never actually happened. Therefore, while patients under narcoanalysis may find it difficult to lie consciously depending on the depth of the narcoanalysis, they can certainly say things that are on the surface of their minds. What a person says in a sedated state depends on a lot of factors, including their personality, how awake they are, how strongly they want to deny certain facts, and so on. “Under pentothal narcoanalysis, when inhibitions are lowered, a lot of the unconscious mind of the patient may come to the fore. The patient may say things that he wished were true and not that were necessarily true,” says Dr. Andrade.

Explaining the case of a suspect who is repeatedly accused of a crime during regular interrogation, Dr. Andrade says, “The same thing goes on during the narcoanalysis. He [the suspect] remembers `you’ve done this, you’ve done this’. He says, `I have done that.'”

When science has outpaced the development of law or at` least the layperson’s understanding of it, there are unavoidable complexities regarding what can be admitted as evidence in court. In the U.S. , where science often interfaces uncomfortably with the law, the Supreme Court offered four criteria, part of the Daubert Standard (1993), by which to judge the credibility of a scientific principle held by a minority of practitioners: hypothesis testing; peer review and publication; knowledge of error rates; and acceptability in the general scientific community.

We must give narcoanalysis its due and grant that it has provided valuable leads to the police in some instances. However, one swallow, or even many swallows in this case, does not a summer make. It is logically consistent for even a pseudo-science to produce reliable outcomes in particular cases. The overall reliability and science behind the practice can only be determined after statistical analysis of a sufficiently large sample.

Legal Aspects

The irony that we face in India is that the science has not leapfrogged the courts by any stretch of imagination. The Bangalore research results and methods have been neither peer-reviewed nor published. Regarding publication of the data, Mohan says he will go public with the FSL data in three to four months (from March 2007), and is willing to debate its implications at international forums. “We have secured convictions, we have secured cross-verification and we have stood through the challenges of the defence,” he says. Asked how he could go against scientific practice, by calling data scientific when they have yet to be proved so, Dr. Mohan says, “Otherwise with what courage do you go to the court?” He adds that given the nature of narcoanalysis, it is not possible to get volunteers to facilitate controlled studies. Studies based on some 300-odd criminal investigations are unlikely to consist of controlled experimental data, and the feedback that goes into defining the success of the analysis is in part provided by police questionnaires. Here lurks a conflict of interest.



Suspected terrorist Imran alias Bilal being taken to Bowring Hospital, Bangalore, for a second narcoanalysis test, in January 2007.

There are other significant legal aspects to the narcoanalysis debate. In a 2006 judgment (Dinesh Dalmia v. State), the Madras High Court held that subjecting an accused to narcoanalysis is not tantamount to testimony by compulsion. The court said 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.” There are two fallacies in this reasoning. First, if narcoanalysis is all that it is made out to be by the Bangalore FSL, the accused will involuntarily answer questions posed to him during the interview. The second fallacy is that it is incorrect to say that the accused is merely taken to the laboratory against his will. He is then injected with substances. The breaking of one’s silence at the time it is broken is always technically `voluntary’. Similarly, it can be argued that after being subject to electric shocks, a subject `quite voluntarily’ divulges information. But the act or threat of violence is where the element of coercion is housed. In narcoanalysis, the drug contained in the syringe is the element of compulsion. The rest is technically voluntary.

In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: “No person accused of any offence shall be compelled to be a witness against himself.” Statements made under narcoanalysis are not admissible in evidence. However, recoveries resulting from such drugged interviews are admissible as corroborative evidence. This is, arguably, a roundabout way of subverting the right to silence – acquiring the information on where to find the weapon from the subject when, in his right senses, he would not turn witness against himself.

Arguments have been made that narcoanalysis constitutes mental torture. It works by inhibiting the nervous system and thus lowering the subject’s inhibitions. It is not difficult to interpret this as a physical violation of an individual’s mind-space.

The Bombay train blasts case, the Nithari killers case, and the “beer killer” case in Mumbai (2007) are just a few examples of recent cases that involved narcoanalysis. The sources of demand for this practice are the State police departments. The decision to conduct narcoanalysis is usually made by the Superintendent of Police or the Deputy Inspector-General handling a case. A high-ranking official in the Karnataka Police told Frontline that the Police Departments in India had poor skills when it came to collection, collation and presentation of evidence before the courts. “Investigative skills at the grassroots are dwindling in India,” he said. Consequently, when there is enormous pressure on a police department to solve a case, sending suspects to narcoanalysis not only buys time but also gives the impression that something concrete has been done about the case.

This is likely what happened in the Nithari case, where the chief accused, Moninder Singh Pandher, and his domestic help, Surender Koli, were sent to Gandhinagar for narcoanalysis in January 2007, according to a reliable source. Often these decisions are backed up by the genuine belief in the “Bangalore Phenomenon”. Bangalore, perceived to be the science hub of India, is mistakenly attributed with being able to use scientific tools to solve any and all investigations.

There are, however, sections of those connected to investigating agencies who feel there is a legitimate case for narcoanalysis. These cases would include the Jessica Lal and Best Bakery investigations where witnesses turned hostile or rape cases where issues of consent are being debated, according to Dr. M.S. Rao, Director and Chief Forensic Scientist at the Directorate of Forensic Sciences, the Home Ministry’s forensic science unit.



Surender Koli, main accused in the Nithari case, coming out from a forensic science laboratory in Gandhinagar in January 2007 after narcoanalysis.

With the Bombay High Court ruling permitting narcoanalysis, its use should be encouraged in grave offences, writes M. Sivananda Reddy, Superindent of Police for Cyber Crimes at Criminal Investigation Department (CID), Andhra Pradesh. Though he cautions against the abuse of narcoanalysis after extensively acknowledging its many shortcomings, Reddy says that using drugs in investigation is of particular use when the investigating officer is hard pressed for time or working to disrupt imminent plots including terrorist acts.

If this line of argumentation sounds familiar, it is probably because it is as old as controversial investigative methods themselves. The argument has also cropped up frequently in the media after the 9/11 attacks in Alan Dershowitz’s ticking-bomb terrorist case, where the Harvard Law School professor argues for legitimising torture in select cases, such as when there is a hypothetical bomb waiting to explode. There are many arguments against the selective use of normally banned cruel practices. Authorities are likely to abuse the power to decide which situations will warrant such exceptions, even when such extraordinary situations are explicitly laid out by law. It will be difficult to find a fool-proof way to determine which suspect is concealing information about a hypothetical bomb. It will often be impossible to know if there is a bomb ticking in the first place. These questions of discretion aside, when a country claims to be committed to human rights and against torture, one may ask if there can ever be a situation that warrants a deviation from its commitment to such principles.

Proponents of narcoanalysis have also argued that the U.S. has secretly resumed truth serum interviews. After 9/11, a Department of Justice Memorandum to the White House discussed options of using truth serums. Additionally, Gerald Posner’s book, Why America Slept, alleges that the U.S. covertly allows its intelligence agencies to conduct sodium pentothal interviews. Nevertheless, these instances are behind the eyes of the law and the public, unlike the Indian case. American interrogation techniques are far from being the gold standard, having earned the ire of the international community and large sections of the U.S. population and legislature.

While the expert studies and court opinions available internationally have granted that there may be some use in narcoanalysis, the overwhelming evidence is that narcoanalysis is by no means a reliable science. In the face of a near-consensus internationally, one or two Indian forensic laboratories claim to have new evidence and studies claiming remarkable success rates for the process. It is now incumbent on them to prove their claim that narcoanalysis is backed by sound science. In the absence of proof, narcoanalysis must necessarily be suspended, especially given its ethical and human rights implications.

State governments need to work with the central authorities to enhance the investigative capabilities of their police departments. The Indian criminal justice system has an alarmingly low conviction rate and the situation needs to be rectified with emphasis on real science and state-of-the-art technology. According to one law enforcement official, this starts with training the investigating officer at the constabulary level in basic investigative sciences. Usually it is the investigating officer who takes charge of an investigation, asking the forensic scientist to accompany him to the crime site to collect certain evidence and provide expert opinion on certain aspects of the crime, which the forensic scientist has the expertise to do. Instead, the police now hand over one of the most crucial parts of the investigation to a clinical psychologist conducting narcoanalysis. Interrogation is an art as well as a science. It takes enormous amounts of training and patience – skills evidently lacking in much of the police force and increasingly outsourced to Bangalore.

The Central government must make a clear policy stand on narcoanalysis – because what is at stake is India’s commitment to individual freedoms and a clean criminal justice system. In a positive development, the Supreme Court, in November 2006, ordered a stay on a metropolitan judge’s order to conduct narcoanalysis on K. Venkateswara Rao, in the Krushi Cooperative Urban Bank case. Rao refused to sign a consent form, and to its credit, the FSL, Gandhinagar, refused to conduct the test without the signed consent form. The Supreme Court decision on the case is awaited and will have a significant bearing on the use of narcoanalysis in India.

 

Supreme Court makes narco, lie detector, brain mapping tests illegal

 

 

New Delhi: In a major setback to investigating agencies, the Supreme Court (SC) on Wednesday ruled compulsory brain mapping, narco-analysis and lie detector tests unconstitutional as they violate individual rights.

“We hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty,” a bench of chief justice KG Balakrishnan, and justices RV Raveendran and JM Panchal said.

Information gained through the tests is already inadmissible in the country’s courts, but the SC ruling makes it clear that the police cannot use the tests or investigate any leads arising thereof unless suspects volunteer.

“Compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms,” the bench said in a 251-page judgment.
The judges said relying on reports gathered from these techniques conflicts with the “right to fair trial”.

They held that compelling public interest cannot justify the dilution of constitutional rights such as the “right against self-incrimination”.

They said that as guardians of fundamental rights, they would be “failing in our duty” if any citizen is permitted to be forcibly subjected to the questionable tests.

The bench described such tests as a form of third degree torture, which could not be permitted to replace existing police behaviour. It discarded the pleas of the states and the Centre that the tests were justified means to tackle terrorism, a crime where investigating agencies are not armed with any tools to find out “ticking bombs”.

Disposing of petitions filed by accused in Maharashtra, Karnataka and Andhra Pradesh, the bench said the tests can be administered to a person only with consent and even then National Human Rights Commission guidelines must be adhered to. The person needs to be assisted by a lawyer, his consent needs to be recorded before a magistrate, and he needs to be told about the implications of his consent and the fact that the information thus collected would not be used against him as evidence in court. But information or material collected with the help of a (voluntary) test can be admitted in court under section 27 of the Evidence Act.

The bench refrained from categorically suggesting that the government could enact a law through Parliament to make the tests valid in compelling public interest and exceptional circumstances. But it said the argument merits consideration and it is “the task of legislature to arrive at a pragmatic balance between the often competing interests of personal liberty and public safety”.

Being the constitutional court, the SC can only “seek to preserve the balance between these competing interests and their interpretation’’, the bench said.
The bench expressed the SC’s dilemma in justifying the “use of torture or other improper means for eliciting information which could help in saving the lives of ordinary citizens”, but termed the government’s defence of making such means applicable to terror-related cases as “utilitarian considerations”.

The government reacted carefully to the judgment, with a senior attorney welcoming the verdict but saying “something extra is needed to deal with terrorists and militants”.

 

Polygraph

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This article is about the forensic instrument. For the automatic signing instrument, see Autopen. For the dual pen device that produces a simultaneous copy of an original while it is written in cursive writing, seePolygraph (duplicating device).

“Lie detector test” redirects here. For other uses, see Lie detector test (disambiguation).

Polygraph results are sometimes recorded on a chart recorder

polygraph (popularly referred to as a lie detector) is an instrument that measures and records several physiological indices such as blood pressurepulserespiration, breathing rhythms/ratios, and skin conductivity while the subject is asked and answers a series of questions, in the belief that deceptive answers will produce physiological responses that can be differentiated from those associated with non-deceptive answers.

Polygraphy is widely rejected as pseudoscience by the scientific community.[1] Nonetheless, polygraphs are in some countries used as an interrogation tool with criminal suspects or candidates for sensitive public or private sector employment. US federal government agencies such as the FBI and the CIA and many police departments such as the LAPD use polygraph examinations to interrogate suspects and screen new employees. Within the US federal government, a polygraph examination is also referred to as a psychophysiological detection of deception (PDD) examination. [edit] History

The idea that lying produces physical side-effects has long been claimed. In West Africa persons suspected of a crime were made to pass a bird‘s egg to one another.[citation needed] If a person broke the egg, then he or she was considered guilty, based on the idea that their nervousness was to blame. In ancient China the suspect held a handful of rice in his or her mouth during a prosecutor’s speech.[citation needed] Becausesalivation was believed to cease at times of emotional anxiety, the person was considered guilty if by the end of that speech the rice was dry.

Early devices for lie detection include an 1885 invention of Cesare Lombroso used to measure changes in blood pressure for police cases, a 1904 device by Vittorio Benussi used to measure breathing, and an abandoned project by American William Marston which used blood pressure and galvanic skin response to examine German prisoners of war (POWs).[2]

Sir James Mackenzie of Scone, Scotland invented an early lie detector or polygraph in the 1900s. MacKenzie’s polygraph “could be used to monitor the cardiovascular responses of his patients by taking theirpulse and blood pressure.[3] He had developed an early version of his device in the 1890s, but had Sebastian Shaw, a Lancashire watchmaker, improve it further. “This instrument used a clockwork mechanism for the paper-rolling and time-marker movements and it produced ink recordings of physiological functions that were easier to acquire and to interpret. Interestingly, it has been written that the modern polygraph is really a modification of Dr. Mackenzie’s clinical ink polygraph.” [4]

A device recording both blood pressure and galvanic skin response was invented in 1911 by Dr. Reginald A. Larson of the University of California and first applied in law enforcement work by the Berkeley Police Department under its nationally renowned police chief August Vollmer. Further work on this device was done by Leonarde Keeler.[5]

Several devices similar to Keeler’s polygraph version included the Berkeley Psychograph, a blood pressure-pulse-respiration recorder developed by C. D. Lee in 1936[6] and the Darrow Behavior Research Photopolygraph, which was developed and intended solely for behavior research experiments.[6][7]

Marston wrote a second paper on the concept in 1915, when finishing his undergraduate studies. He entered Harvard Law School and graduated in 1918, re-publishing his earlier work in 1917.[8] According to their son, Marston’s wife, Elizabeth Holloway Marston, was also involved in the development of the systolic blood pressure test: “According to Marston’s son, it was his mother Elizabeth, Marston’s wife, who suggested to him that ‘When she got mad or excited, her blood pressure seemed to climb’ (Lamb, 2001). Although Elizabeth is not listed as Marston’s collaborator in his early work, Lamb, Matte (1996), and others refer directly and indirectly to Elizabeth’s work on her husband’s deception research. She also appears in a picture taken in his polygraph laboratory in the 1920s (reproduced in Marston, 1938).”[9][10] The comic book character, Wonder Woman, by William Marston (and influenced by Elizabeth Marston[11][12]) carries a magic lasso which was modelled upon the pneumograph (breathing monitor) test.[11][13]

Marston was the self-proclaimed “father of the polygraph” despite his predecessor’s contributions. Marston remained the device’s primary advocate, lobbying for its use in the courts. In 1938 he published a book,The Lie Detector Test, wherein he documented the theory and use of the device.[14] In 1938 he appeared in advertising by the Gillette company claiming that the polygraph showed Gillette razors were better than the competition.[15][16][17]

A device which recorded muscular activity accompanying changes in blood pressure was developed in 1945 by John E. Reid, who claimed that greater accuracy could be obtained by making these recordings simultaneously with standard blood pressure-pulse-respiration recordings.[6][18]

[edit] Testing procedure

Globe icon. The examples and perspective in this section may not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page(April 2010)

Today, polygraph examiners use two types of instrumentation: analog and computerized. In the United States, most examiners now use computerized instrumentation.

A typical polygraph test starts with a pre-test interview to gain some preliminary information which will later be used for “control questions”, or CQ. Then the tester will explain how the polygraph is supposed to work, emphasizing that it can detect lies and that it is important to answer truthfully. Then a “stim test” is often conducted: the subject is asked to deliberately lie and then the tester reports that he was able to detect this lie. Then the actual test starts. Some of the questions asked are “irrelevant” or IR (“Is your name Chris Drozdz?”), others are “probable-lie” control questions that most people will lie about (“Have you ever stolen money?”) and the remainder are the “relevant questions”, or RQ, that the tester is really interested in. The different types of questions alternate. The test is passed if the physiological responses during the probable-lie control questions (CQ) are larger than those during the relevant questions (RQ). If this is not the case, the tester attempts to elicit admissions during a post-test interview, for example, “Your situation will only get worse if we don’t clear this up”.[19][20]

Criticisms have been given regarding the validity of the administration of the Comparative Questions test (CQT). The CQT may be vulnerable to being conducted in an interrogation-like fashion. This kind of interrogation style would elicit a nervous response from innocent and guilty suspects alike. There are several other ways of administrating the questions.

An alternative is the Guilty Knowledge test (GKT), or the Concealed Information Test (CIT). The administration of this test is given to prevent potential errors that may arise from the questioning style. The test is usually conducted by a tester with no knowledge of the crime or circumstances in question. The administrator tests the participant on their knowledge of the crime that would not be known to an innocent person. For example: “Was the crime committed with a .45 or a 9 mm?” The questions are in multiple choice and the participant is rated on how they react to the correct answer. If they react strongly to the guilty information, then proponents of the test believe that it is likely that they know facts relevant to the case. This administration is considered more valid by supporters of the test because it contains many safeguards to avoid the risk of the administrator influencing the results.[21]

[edit] Validity

Polygraphy has little credibility among scientists.[22][23] Despite claims of 90-95% validity by polygraph advocates, and 95-100% by businesses providing polygraph services[24], critics maintain that rather than a “test”, the method amounts to an inherently unstandardizable interrogation technique whose accuracy cannot be established. A 1997 survey of 421 psychologists estimated the test’s average accuracy at about 61%, a little better than chance.[25] Critics also argue that even given high estimates of the polygraph’s accuracy a significant number of subjects (e.g. 10% given a 90% accuracy) will appear to be lying, and would unfairly suffer the consequences of “failing” the polygraph. In the 1998 Supreme Court case, United States v. Scheffer, the majority stated that “There is simply no consensus that polygraph evidence is reliable” and “Unlike other expert witnesses who testify about factual matters outside the jurors’ knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion…”[26] Also, in 2005 the 11th Circuit Court of Appeals stated that “polygraphy did not enjoy general acceptance from the scientific community”.[27] Charles Honts, a psychology professor at Boise State University, states that polygraph interrogations give a high rate of false positives on innocent people.[28] In 2001 William G. Iacono, Distinguished McKnight University Professor of Psychology and Neuroscience and Director, Clinical Science and Psychopathology Research Training Program at the University of Minnesota, published a paper titled “Forensic “Lie Detection”: Procedures Without Scientific Basis” in the peer reviewed Journal of Forensic Psychology Practice. He concluded that

Although the CQT [Control Question Test] may be useful as an investigative aid and tool to induce confessions, it does not pass muster as a scientifically credible test. CQT theory is based on naive, implausible assumptions indicating (a) that it is biased against innocent individuals and (b) that it can be beaten simply by artificially augmenting responses to control questions. Although it is not possible to adequately assess the error rate of the CQT, both of these conclusions are supported by published research findings in the best social science journals (Honts et al., 1994; Horvath, 1977; Kleinmuntz & Szucko, 1984; Patrick & Iacono, 1991). Although defense attorneys often attempt to have the results of friendly CQTs admitted as evidence in court, there is no evidence supporting their validity and ample reason to doubt it. Members of scientific organizations who have the requisite background to evaluate the CQT are overwhelmingly skeptical of the claims made by polygraph proponents. [29]

Summarizing the consensus in psychological research, professor David W. Martin, PhD, from North Carolina State University, states that people have tried to use the polygraph for measuring human emotions, but there is simply no royal road to (measuring) human emotions.[30] Therefore, since one cannot reliably measure human emotions (especially when one has an interest in hiding his/her emotions), the idea of valid detection of truth or falsehood through measuring respiratory rate, blood volume, pulse rate and galvanic skin response is a mere pretense. Since psychologists cannot ascertain what emotions one has,[31]polygraph professionals are not able to do that either.

Polygraphy has also been faulted for failing to trap known spies such as double-agent Aldrich Ames, who passed two polygraph tests while spying for the Soviet Union.[28][32] Other spies who passed the polygraph include Karl Koecher,[33] Ana Belen Montes,[34] and Leandro Aragoncillo.[35] However, CIA spy Harold James Nicholson failed his polygraph examinations, which aroused suspicions that led to his eventual arrest.[36] Polygraph examination and background checks failed to detect Nada Nadim Prouty, who was not a spy but was convicted for improperly obtaining US citizenship and using it to obtain a restricted position at the FBI.[37]

The polygraph also failed to catch Gary Ridgway, the “Green River Killer”. Ridgway passed a polygraph in 1984 and confessed almost 20 years later when confronted with DNA evidence.[38]

Conversely, innocent people have been known to fail polygraph tests. In Wichita, Kansas in 1986, after failing two polygraph tests (one police administered, the other given by an expert that he had hired), Bill Wegerle had to live under a cloud of suspicion of murdering his wife Vicki Wegerle, even though he was neither arrested nor convicted of her death. In March 2004, a letter was sent to The Wichita Eagle reporter Hurst Laviana that contained Vicki’s drivers license and what first appeared to be crime scene photographs of her body. The photos had actually been taken by her true murderer, BTK,[39] the serial killer that had plagued the people of Wichita since 1974 and had recently resurfaced in February 2004 after an apparent 25 year period of dormancy (he had actually killed three women between 1985 and 1991, including Wegerle). That effectively cleared Bill Wegerle of the murder of his wife. In 2005 conclusive DNA evidence including DNA retrieved from under the fingernails of Vicki Wegerle, demonstrated that the BTK Killer was Dennis Rader[40]

Prolonged polygraph examinations are sometimes used as a tool by which confessions are extracted from a defendant, as in the case of Richard Miller, who was persuaded to confess largely by polygraph results combined with appeals from a religious leader.[41]

Law enforcement agencies and intelligence agencies in the United States are by far the biggest users of polygraph technology. In the United States alone all federal law enforcement agencies either employ their own polygraph examiners or use the services of examiners employed in other agencies.[42] This is despite persistent claims of unreliability. For example in 1978 Richard Helms, the 8th Director of Central Intelligence, stated that:
“We discovered there were some Eastern Europeans who could defeat the polygraph at any time. Americans are not very good at it, because we are raised to tell the truth and when we lie it is easy to tell are lying. But we find a lot of Europeans and Asiatics can handle that polygraph without a blip, and you know they are lying and you have evidence that they are lying.”[43]

[edit] Countermeasures

Several countermeasures designed to pass polygraph tests have been described. Asked how he passed the polygraph test, Ames explained that he sought advice from his Soviet handler and received the simple instruction to: “Get a good night’s sleep, and rest, and go into the test rested and relaxed. Be nice to the polygraph examiner, develop a rapport, and be cooperative and try to maintain your calm.”[44]

Other suggestions for countermeasures include for the subject to mentally record the control and relevant questions as the examiner reviews them prior to commencing the interrogation. Once the interrogation begins, the subject is then supposed to carefully control their breathing during the relevant questions, and to try to artificially increase their heart rate during the control questions, such as by thinking of something scary or exciting or by pricking themselves with a pointed object concealed somewhere on their body. In this way the results will not show a significant reaction to any of the relevant questions.[45][46]

[edit] 2003 National Academy of Sciences report

The accuracy of the polygraph has been contested almost since the introduction of the device. In 2003, the National Academy of Sciences (NAS) issued a report entitled “The Polygraph and Lie Detection”. The NAS found that the majority of polygraph research was “Unreliable, Unscientific and Biased”, concluding that 57 of the approximately 80 research studies that the APA relies on to come to their conclusions were significantly flawed. These studies concluded that a polygraph test regarding a specific incident can discern the truth at “a level greater than chance, yet short of perfection”though NAS did restrict almost all of its conclusions to polygraph usage for “security screening” purposes. It did not focus on forensic applications, polygraph testing commonly plays a role in helping to resolve criminal investigations.. The report also concluded that this level of accuracy was overstated and the levels of accuracy shown in these studies “are almost certainly higher than actual polygraph accuracy of specific-incident testing in the field.”[47]

When polygraphs are used as a screening tool (in national security matters and for law enforcement agencies for example) the level of accuracy drops to such a level that “Its accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies.” In fact, the NAS extrapolated that if the test were sensitive enough to detect 80% of spies (a level of accuracy which it did not assume), this would hardly be sufficient anyway. Let us take for example a hypothetical polygraph screening of a body of 10,000 employees among which are 10 spies. With an 80% success rate, the polygraph test would show that 8 spies and 1,992 non-spies fail the test. Thus, roughly 99.6 percent of positives (those failing the test) would be falsepositives. The NAS concluded that the polygraph “…may have some utility”[47] but that there is “little basis for the expectation that a polygraph test could have extremely high accuracy.”[48]

The NAS conclusions paralleled those of the earlier United States Congress Office of Technology Assessment report “Scientific Validity of Polygraph Testing: A Research Review and Evaluation”.[49]

[edit] Admissibility of polygraphs in court

[edit] United States

In 2007[update], polygraph testimony was admitted by stipulation in 19 states, and was subject to the discretion of the trial judge in federal court. The use of polygraph in court testimony remains controversial, although it is used extensively in post-conviction supervision, particularly of sex offenders. In Daubert v. Merrell Dow Pharmaceuticals (1993),[50] the old Frye standard was lifted and all forensic evidence, including polygraph, had to meet the new Daubert standard in which “underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue.” While polygraph tests are commonly used in police investigations in the US, no defendant or witness can be forced to undergo the test. In United States v. Scheffer (1998),[51] the U.S. Supreme Court left it up to individual jurisdictions whether polygraph results could be admitted as evidence in court cases. Nevertheless, it is used extensively by prosecutorsdefense attorneys, and law enforcement agencies. In the States of MassachusettsMarylandNew JerseyDelaware and Iowa it is illegal for any employer to order a polygraph either as conditions to gain employment, or if an employee has been suspected of wrongdoing. The Employee Polygraph Protection Actof 1988 (EPPA) generally prevents employers from using lie detector tests, either for pre-employment screening or during the course of employment, with certain exemptions.[52]

In the United States, the State of New Mexico admits polygraph testing in front of juries under certain circumstances. In many other states, polygraph examiners are permitted to testify in front of judges in various types of hearings (Motion to Revoke Probation, Motion to Adjudicate Guilt).

In 2007, in Ohio v. Sharma, an Ohio trial court overruled the objections of a prosecutor and allowed a polygraph examiner to testify regarding a specific issue criminal examination. The court took the position that the prosecutors regularly used a polygraph examiner to conduct criminal tests against defendants, but only objected to the examiner’s testimony when the results contradicted what they hoped to achieve.[53] Dr. Louis Rovner [8], a polygraph expert from California, tested the defendant and testified as an expert witness both at a pretrial admissibility hearing and at trial. The defendant, who had been charged with sexual battery, was acquitted.[54]

[edit] Europe

In most European jurisdictions, polygraphs are not considered reliable evidence and are not generally used by police forces. However, in any lawsuit, an involved party can order a psychologist to write an opinion based on polygraph results to substantiate the credibility of its claims. The party must bear the expense themselves, and the court weighs the opinion like any other opinion the party has ordered. Courts themselves do not order or pay for polygraph tests. In most cases, polygraph tests are voluntarily taken by a defendant in order to substantiate his or her claims.

[edit] Canada

In Canada, the polygraph is regularly used as a forensic tool in the investigation of criminal acts and sometimes employed in the screening of employees for government organizations. In the 1987 decision of R. v. Béland, the Supreme Court of Canada rejected the use of polygraph results as evidence in court. This decision did not however affect the use of the polygraph in criminal investigations. The polygraph continues to be used as an investigative tool.

[edit] Australia

The High Court of Australia has not yet considered the admissibility of polygraph evidence. However, the New South Wales District Court rejected the use of the device in a criminal trial. In Raymond George Murray 1982 7A Crim R48 Sinclair DCJ refused to admit polygraph evidence tending to support the defence. His Worship rejected the evidence because

  1. The veracity of the accused and the weight to be given to his evidence, and other witnesses called in the trial, was a matter for the jury.
  2. The polygraph “expert” sought to express an opinion as to ultimate facts in issue, which is peculiarly the province of the jury.
  3. The test purported to be expert evidence by the witness who was not qualified as an expert, he was merely an operator and assessor of a polygraph. The scientific premise upon which his assessment was based had not been proved in any Court in Australia.
  4. Devoid of any proved or accepted scientific basis, the evidence of the operator is hearsay which is inadmissible.

The Court cited, with approval, the Canadian case of Phillion v R 1978 1SCR 18.

[edit] Israel

The High Court of Israel, in Civil Appeal 551/89 (Menora Insurance Vs. Jacob Sdovnik), ruled that as the polygraph has not been recognized as a reliable device, polygraph results are inadmissible as evidence in acivil trial. In other decisions, polygraph results were ruled inadmissible in criminal trials. However, some insurance companies attempt to include a clause in insurance contracts, in which the beneficiary agrees that polygraph results be admissible as evidence. In such cases, where the beneficiary has willingly agreed to such a clause, signed the contract, and taken the test, the courts will honor the contract, and take the polygraph results into consideration. Interestingly, it is common practice for lawyers to advise people who signed such contracts to refuse to take the test. Depending on whether or not the beneficiary signed an agreements clause, and whether the test was already taken or not, such a refusal usually has no ill effects; at worst, the court will simply order the person to take the test as agreed. At best, the court will cancel the clause and release the person from taking the test, or rule the evidence inadmissible.

[edit] India

Recently an Indian court adopted the brain electrical oscillations signature test as evidence to convict a woman, who was accused of murdering her fiance. It is the first time that the result of polygraph was used as evidence in court.[55] On May 5th, 2010, The Supreme Court of India declared use of narcoanalysisbrain mapping and polygraph tests on suspects as illegal and as against constitution.[56]

[edit] Use with espionage and security clearances

Globe icon. The examples and perspective in this section may not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page(April 2010)

In the American military and intelligence communities, polygraphs have been administered both as terms of qualifying for a security clearance and as part of a periodic reinvestigation to retain a clearance. There is no uniform standard for whether the polygraph is needed, as some methods of adjudication do not demand a successful polygraph test to earn a clearance. Other agencies, particularly certain military units, actually prohibit polygraph testing on their members.

It is difficult to precisely determine the effectiveness of polygraph results for the detection or deterrence of spying. Failure of a polygraph test could cause revocation of a security clearance, but it is inadmissible evidence in most federal courts and military courts martial. The polygraph is more often used as a deterrent to espionage rather than detection. One exception to this was the case of Harold James Nicholson, a CIA employee later convicted of spying for Russia. In 1995, Nicholson had undergone his periodic five year reinvestigation where he showed a strong probability of deception on questions regarding relationships with a foreign intelligence unit. This polygraph test later launched an investigation which resulted in his eventual arrest and conviction. In most cases, however, polygraphs are more of a tool to “scare straight” those who would consider espionage. Jonathan Pollard was advised by his Israeli handlers that he was to resign his job from American intelligence if he was ever told he was subject to a polygraph test. Likewise,John Anthony Walker was advised to by his handlers not to engage in espionage until he had been promoted to the highest position for which a polygraph test was not required, to refuse promotion to higher positions for which polygraph tests were required, and to retire when promotion was mandated.[57] As part of his plea bargain agreement for his case of espionage for the Soviet UnionRobert Hanssen would be made to undergo a polygraph at any time as part of damage assessment. In Hanssen’s 25-year career with the FBI, not once was he made to undergo a polygraph. He later said that if he had been ordered to, he may have thought twice about espionage.

Alternatively, the use of polygraph testing, where it causes desperation over dismissal for past dishonesty, may encourage spying. For example, Edward Lee Howard was dismissed from the CIA when, during a polygraph screening, he truthfully answered a series of questions admitting to minor crimes such as petty theft and drug abuse. The CIA failed to see that the firing was an action that would logically anger Howard, and in retaliation for his perceived unjust punishment for minor offenses, he later sold his knowledge of CIA operations to the Soviet Union.[58]

It is also worth noting that polygraph tests may not deter espionage. From 1945 to the present, at least six Americans had been committing espionage while they successfully passed polygraph tests. Two of the most notable cases of two men who created a false negative result with the polygraphs were Larry Wu-Tai Chin and Aldrich Ames. Ames was given two polygraph examinations while with the CIA, the first in 1986 and the second in 1991. The CIA reported that he passed both examinations after experiencing initial indications of deception.[59] According to a Senate investigation, an FBI review of the first examination concluded that the indications of deception were never resolved.[60] The Senate committee reported that the second examination, at a time when Ames was under suspicion, resulted in indications of deception and a retest a few days later with a different examiner. The second examiner concluded that there were no further indications of deception. In the CIA’s analysis of the second exam, they were critical of their own failure to convey to their examiner the existing suspicions that were not addressed in the examination.

In August 2008, the US Defense Intelligence Agency announced that it would subject each of its 5,700 prospective and current employees to a polygraph interrogation at least once annually.[28]

[edit] Hand-held lie detector for U.S. military

A hand-held lie detector is being deployed by the U.S. Department of Defense according to a report in 2008 by investigative reporter Bill Dedman of msnbc.com. The Preliminary Credibility Assessment Screening System, or PCASS, captures less physiological information than a polygraph, and uses an algorithm, not the judgment of a polygraph examiner, to render a decision whether it believes the person is being deceptive or not. The device will be used first in Afghanistan by U.S. Army troops. The Department of Defense orders limit its use to non-U.S. persons.[61]

[edit] Use with sex offenders

Sexual offenders are now routinely polygraphed in many states of the United States and it is often a mandatory condition of probation or parole. In Texas, a state appellate court has upheld the testing of sex offenders under community supervision and has also upheld written statements given by sex offenders if they have committed a further offense with new victims. These statements are then used when a motion is filed to revoke probation and the probationer may then be sentenced to prison for having violated his or her probation.

Regular polygraph testing is sometimes also used during the rehabilitation of convicted sex offenders. Questioning the offender specifically about their inner thoughts, desires, and impulses is intended to give a general indication of their treatment progress and likelihood of future offenses. Similarly, predatory or violent offenders at some facilities may also undergo testing for involuntary physical arousal when shown provocative images relating to their past crimes. Perhaps the most well-known example of this rehabilitation technique is practiced at Coalinga State Hospital in California.[62]

A significant number of Federal appeals courts have upheld polygraph testing for Federal probationers as well. The most recent decision was by the Second Circuit Court of Appeals regarding a New York sex offender.

The UK will soon allow compulsory polygraph tests for convicted sex offenders released on license.[63][64]

[edit] Polygraphy in popular culture

Lie detection has a long history in mythology and fairy tales; the polygraph has allowed modern fiction to use a device more easily seen as scientific and plausible. Notable instances of polygraph usage include uses in crime and espionage themed television shows and some daytime television talk shows, cartoons and films. The most notable polygraph TV show is Lie Detector, which first aired in the 1950s created and hosted by Ralph Andrews. Then in the 1960s Ralph produced a series of specials hosted by Melvin Belli, then in the 1970s hosted by Jack Anderson. In 1998 TV producer Mark Phillips with his Mark Phillips Philms & Telephision put Lie Detector back on the air on the FOX Network—on that program Dr. Ed Gelb with host Marcia Clark cleared Mark Fuhrman from the allegation that he “planted the bloody glove.” Later Phillips produced Lie Detector as a series for PAX/ION—some of the guests included Paula Jones, Reverend Paul Crouch accuser Lonny Ford, Ben Rowling, Jeff Gannon and Swift Boat Vet Steve Garner.

FOX has taken this one step further with their game show The Moment of Truth which pits people’s honesty against their own sense of modesty, propriety, etc. Contestants are given a polygraph test administered by a polygraph expert in a pre-screening session answering over 50 questions. Later they must sit in front of a studio audience including their friends & family for the televised portion of the show. There they need only answer 21 answers truthfully “as determined by the polygraph” to win $500,000. The questions get more personal and/or more revealing as they advance. Most polygraph experts caution that the polygraph techniques used on Moment of Truth do not conform to any known or accepted methods of polygraphy.[citation needed]

Daytime talk shows, such as Maury Povich and Steve Wilkos, frequently use lie detectors to tell if someone is cheating on their significant other.

In one MacGyver episode ‘Slow Death’, MacGyver assists the Indian tribesmen by improvising a polygraph to weed out the crooked doctor. This is made possible by using an analog sphygmomanometer to monitor blood pressure change, and an electronic alarm clock to detect sweat. To test its reliability, MacGyver asked a passenger on the train a few ‘placebo’ questions. The culprit was only discovered when he was trying to hide his crime, thus his sweat triggered the alarm clock and blood pressure climbed up.

In the movie Ocean’s 13, one of the characters beats a polygraph test by stepping on a tack when answering truthfully, which supposedly raises the polygraph’s readings for the truthful answers so they equal the deceptive ones.

In the television series Profit, there is a memorable sequence at the end of episode “Healing” where the eponymous character, Jim Profit, manages to fool a polygraph. He does that by putting a nail through the sole of his shoe and pushing it inside of his heel while answering every question in order to even out the readings. This scene is very graphic, especially for its time, 1996. During a voice over, Profit explains the theory behind the polygraph and the flaws he intends to exploit in it.

In episode 93 of the USA popular science show Mythbusters, they attempted to fool the polygraph by using pain to try to increase the readings when answering truthfully (so the machine will supposedly interpret the truthful and non-truthful answers as the same.) They also attempted to fool the polygraph by thinking happy thoughts when lying and thinking stressful thoughts when telling the truth to try to confuse the machine. However, neither technique was successful for a number of reasons. Michael Martin correctly identified each guilty and innocent subject. The show also noted the opinion that, when done properly, polygraphs are correct 80-99% of the time.[65]

In season 7, episode 5 of Penn & Teller’s Showtime series Bullshit!, it was claimed and appeared to have been demonstrated that polygraphs can be confused or beaten by tightening up one’s anal sphincter. Doug Williams, a former Oklahoma City police polygraph examiner, explained that many large arteries exist around the anal sphincter and that by tightening the muscles, the arteries will constrict, raising one’s blood pressure, and registering a lie. It was then demonstrated by having a woman hooked up to a polygraph, having her write a number from 1-10 on a piece of paper (she chose 7), deny that she chose each number as asked by the examiner but tighten up her anal sphincter on the number 7. Doing this on the number 7 caused it to register as a lie, even though she was telling the truth. This episode also touched on people who have lost their security clearances, and subsequently their jobs, due to failing a polygraph even though they claimed to have told the complete and honest truth.

 

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Polygraph Policy

Polygraph testing is widely used in the intelligence community to screen employees, to establish eligibility for access to classified intelligence information, and for general counterintelligence purposes. It is also used as a tool in the investigation of unauthorized disclosures of classified information and other offenses.

Growing awareness of the limitations of polygraph testing, coupled with official efforts to expand its application, have produced a new degree of controversy over this technology.

Court Rejects Legal Challenge to Polygraph Testing, memorandum opinion in Croddy, et al, v. FBI, October 2, 2006

Dept of Energy Counterintelligence Polygraph PolicyFederal Register, September 29, 2006. “The question of whether and to what extent DOE should use the polygraph as a tool for screening individuals for access to our most sensitive information is the latest manifestation of this perennial struggle.”

Use of Polygraph Examinations in the Department of Justice, DoJ Office of Inspector General, September 2006. “In this report, we provide a detailed description of how polygraphs are used throughout the Department.”

Hearing on Department of Energy Polygraph Program
04 September 2003 — Senate Energy and Natural Resources Committee

Department of Defense Polygraph Program

Polygraph Studies and Related Commentary

Polygraph Hearing

  • “Issues Surrounding the Use of Polygraphs”
    Senate Committee on the Judiciary
    April 25, 2001

    • Statement of Chairman Orrin G. Hatch
    • Statement of Senator Patrick Leahy
    • Mike Capps, Deputy Director for Developmental Programs, Defense Security Service, Alexandria, VA
    • Dr. William Iacono, Professor, Department of Psychology, University of Minnesota, Minneapolis, MN
    • Jeffrey H. Smith, Esq., Partner, Arnold & Porter, Washington, D.C.
    • Mark S. Zaid, Esq., Lobel, Novins & LaMont, Washington, D.C.
    • Richard Keifer, President, American Polygraph Association, Apopka, FL
    • George W. Maschke, AntiPolygraph.org (submitted for the record)

Polygraph Legislation, Rules and Regulations

Old Polygraph News

  • Domenici Wants NAS to Weigh Polygraph Benefits to Lab Security, press release, January 26, 2001. “Senator Pete Domenici today reiterated his concerns that polygraph tests mandated as a means of improving security at the Energy Department’s national laboratories may ultimately be counterproductive.”
  • National Academy Begins Review of Polygraph Validity, January 2001 (offsite). The 18 month review, which was proposed by Sen. Jeff Bingaman and funded by the Department of Energy, will examine the controversial use of polygraph testing for personnel security screening. And it “will include what is known about the effect of medications, sleep deprivation, and illnesses on the physiological responses measured.”
  • The Truth About Polygraphs? by Vernon Loeb, Washington Post online, December 8, 2000 (offsite).
  • DoD Seeks Contractors for Polygraph Validity Study, Commerce Business Daily, December 6, 2000 (offsite). “The objective is to test up to 100 volunteers over a two month period. The goal of this project is to manipulate volunteers into telling specific lies during polygraph examination to test the accuracy of the polygraph examination procedure.”
  • $860,000 DOE Study to Evaluate Polygraphs by Jennifer McKee, Albuquerque Journal, December 5, 2000. “The Department of Energy intends to sink almost a million dollars into an upcoming study to determine — once and for all — how well widespread lie detector tests work in preventing espionage.”
  • DOE Agrees to Fund Bingaman-Urged Polygraph Validity Study, press release, December 4, 2000. “The distinguished scientists and engineers who work at Sandia and Los Alamos deserve to know whether polygraphs produce valid results and this study will help make that determination.”
  • Polygraph Lawsuit Filed, March 15, 2000 (offsite). Plaintiffs, represented by Mark S. Zaid, challenge the use of the polygraph by the FBI, the DEA and the Secret Service. As a result of current policy, they argue, “innocent individuals are falsely labeled drug users, drug dealers, terrorists and/or spies without any reasonable opportunity to ever clear their name.”
  • DOE Polygraph Implementation Plan Announced, DOE press release, December 13, 1999. “Secretary of Energy Bill Richardson said he has significantly reduced the number of employees affected so that approximately 800 federal and contractor employees will be subjected to the polygraph test.”
  • Senate Calls for Study of Polygraph Validity, an amendment introduced by Sen. Jeff Bingaman, October 7, 1999. “The National Institutes of Health should enter into appropriate arrangements with the National Academy of Sciences to conduct a comprehensive study and investigation into the scientific validity of polygraphy as a screening tool for federal and federal contractor personnel.”
  • Bingaman Amendments on Polygraph, September 30, 1999. Two proposed amendments offered by Senator Bingaman would assess the validity of polygraph testing for employee screening, and the potential use of countermeasures.
  • Lawmaker Wants DOE to Abandon Expanded Polygraph Testing at Labs by Keith J. Costa, Inside the Pentagon, September 30, 1999. Calling the Energy Department’s plans to expand polygraph testing at the agency nuclear labs “overly broad,” Rep. Ellen Tauscher (D-CA) calls for a moratorium on polygraph tests.
  • Rep. Ellen Tauscher Calls for Moratorium on Expanded Polygraph Testing at Nuclear Labs, letter to Energy Secretary Richardson, September 28, 1999. “I urge you to enact a complete moratorium on all polygraph tests until an acceptable, limited polygraph plan is developed and vetted.”
  • Remarks on Polygraph Testing by Senator Jeff Bingaman, September 22, 1999. “The proposed DOE rule on polygraphs … is not based on sound science and does not represent reasoned decision making, in my view.”
  • DOE Lie-detector Tests for Employees Criticized by Katy Saldarini, Government Executive, September 22, 1999. Critics “say a new policy requiring employees of the nation’s nuclear weapons complex to submit to lie-detector tests is a misguided approach that could damage, rather than protect, national security.”
  • Senate Intel Committee Calls for “Alternatives” to Polygraph Testing, Senate Report 106-48, May 1999 (excerpt). “Given the potential unreliability of the polygraph system, the Committee believes that alternatives to the polygraph should be explored.”

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Custodial Torture And Its Remedies

“Torture is wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralysing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself”.-Adriana P. Bartow

Custodial torture ranging from assault of various types to death by the police for extortion of confessions and imputation of evidence are not uncommon. Such a method of investigation and detection of a crime, in the backdrop of expanding idea of ‘humane’ administration of criminal justice, not only disregards human rights of an individual and thereby undermines his dignity but also exposes him to unwarranted violence and torture by those who are expected to ‘protect’ him.[1]

In India where rule of law is inherent in each and every action and right to life and liberty is prized fundamental right adorning highest place amongst all important fundamental rights, instances of torture and using third degree methods upon suspects during illegal detention and police remand casts a slur on the very system of administration.[2] Human rights take a back seat in this depressing scenario. Torture in custody is at present treated as an inevitable part of investigation. Investigators retain the wrong notion that if enough pressure is applied then the accused will confess.[3] The former Supreme Court judge, V.R. Krishna Iyer, has said that custodial torture is worse than terrorism because the authority of the State is behind it.[4]

It is a paradox that torture continues to exist in India. This is because India is a liberal democracy with very clearly articulated constitutional and statutory provisions against torture that are constantly being developed and monitored by a strong and independent judiciary. This raises the question: how does torture continue to persist in India?[5]

The crudity of criminal investigation is often blamed on the crudity of resources: the lack of scientific equipment and professionally-trained persons to do the job properly. Although this is an element in the problem, it is not the central one. More important is the sheer impunity enjoyed by law enforcers. This impunity is allowed to flourish for want of laws criminalising and punishing custodial torture, and also due to corruption and the wanton degeneration of courts and other institutions for the maintenance of law in India. Where a torture victim must wait for years in hope that a judge may one day take up his/her case, while meanwhile the perpetrator is being promoted, the very concept of justice is undermined.

Custodial torture is universally held as one of the cruellest forms of human rights abuse. The Constitution of India, the Supreme Court, the National Human Rights Commission (NHRC) and the United Nations forbid it. But the police across the country defy these institutions. Therefore, there is a need to strike a balance between the individual human rights and societal interests in combating crime by using a realistic approach.[6]
Custodial Torture and Death-The Current Status:

The World Medical Association, in its Tokyo Declaration, 1975, defined “torture”[7] as
“the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons, acting alone or on the orders of any authority to force another person to yield information, to make a confession or for any other reason”.

Custodial torture, often known as extra-judicial executions has been on a rise in India especially between 2002 and 2007. According to Asian Centre for Human Rights, the nationwide figures are four custodial deaths per day.[8] There have been 7468 reported custodial deaths in this five year period. However, the severity of the torture in India is far worse than statistics suggest. This is because victims rarely report cases against the police due to fear of reprisals. More than half the cases of custodial torture are not even reported.[9]

While award of compensation in 684 cases of custodial violence was given by the National Human Rights Commission alone from 1994 to 2007, conviction of only seven police personnel in 2004 and 2005 took place as against these overwhelming figures of custodial torture and subsequent deaths. This has led to a deep concern among the authorities.[10]

The explanations for torture can be broadly discussed under categories such as role of media, colonial origins, and institutional weaknesses. Firstly, there is a strong sense that the media exaggerates the incidents of torture and creates a negative image of the police. Second, scholars contend that the current police still suffer from the impact of their colonial origins as a repressive instrument of the police raj (rule). As a result, the “police mindset is steeped into colonial era when the police were supposed to treat every Indian as an enemy of the state.”[11] Third, there is constant pressure on the police from all quarters including politicians and bureaucrats to show instant results.[12] The lack of adequate facilities and personnel for investigation and the extremely high case load with an inefficient supervisory structure also hinders the ability of the police to produce the results required of them, prompting them to take short cuts.[13] In addition, the lack of training in human rights is considered a primary reason why third degree torture continues to exist in India.

For instance, the recent cases of custodial killings reported from the state of Gujarat show a consistent and alarming pattern of tolerance of the use of torture by the government and promotion of it as if it is an essential element of law enforcement and investigation of crime. In Gujarat, the interrogation centres — often torture chambers — of the state police have been functioning in full public view. The suspects are brought in, kept in illegal detention and tortured as part of questioning and later killed and declared as killed in encounter. This procedure is public knowledge, yet no one dares to challenge it. Officers, right from the top are involved in this endeavour.

In a proceeding in the Supreme Court regarding this, the state government admitted in court that it was aware of the existence of the interrogation and torture centres. The government also admitted that in several cases the officers might have also killed the witnesses of arrest and detention in order to avoid questions at a later stage. The Gujarat experience, while being a shocking revelation of the state of policing in that state is also the proof that the public could be forced to silence, if the state so requires, by imparting fear.

Interrogation centers in India are run in the cover of prevention of terrorist activities. Interrogation centers are not limited to the state of Gujarat. In several other states like Uttar Pradesh, Madhya Pradesh, Uttaranchal, Chhattisgarh, Andhra Pradesh and Rajasthan the state governments run similar centres. In some states these centres are run in the name of anti-naxalite action.

In the state of Chhattisgarh for example, the naxalite and anti-naxalite activity has killed hundreds of innocent people. Use of brute force by the state and non-state actors irreparably destroys the social fabric. Besides promoting private armed groups, the state has also pressed into use questionable legislations like the Chhattisgarh Special Public Security Act, 2005. This statute is so loosely worded that anyone could be charged for a crime in this law. Many accepted legal norms in criminal law like non-retroactivity is negated in this statute.

Violence is used widely with impunity in the North-Eastern states. The state of Manipur in particular, is completely militarised. The paramilitary and the army detachments stationed in that state is notorious for the use of torture and violence as the only tool for investigation. Cases reported from Manipur, are mostly involving the armed forces, the Assam Rifles in particular.

Administrative neglect promoting the use of torture is misused by the police and other law enforcement agencies as an excuse for demanding bribe and for not doing their job according to the law. Continuing neglect by the government has also considerably reduced the morale of the law enforcement agencies. Rather than being considered as an essential state service police and other law enforcement agencies are viewed as state sponsored terror agencies mostly filled with criminals.

Remedies Against Custodial Torture:
There are two approaches with respect to the remedies provided for against custodial torture and subsequent death as well. These two approaches are – legal regime and judicial precedents. They can be explained as follows:

Legal Regime:
Constitutional Safeguards:
It has been held in a catena of judgements that just because a person is in police custody or detained or under arrest, does not deprive of him of his basic fundamental rights and its violation empowers the person to move the Supreme Court under Article 32 of theConstitution of India.[14] Detention does not deprive one of his fundamental rights.[15] They don’t flee the persons as he enters the prison although they may suffer shrinkage necessitated by incarceration.[16] However, the extent of shrinkage can and should never reach the stage of torture in custody of such a nature that the persons are reduced to a mere animal existence.

Article 20 of the Constitution of India:

Article 20 primarily gives a person the rights against conviction of offences. These include the principle of non-retroactivity of penal laws (Nullum crimen sine lege[17]) i.e. ex-post facto laws thereby making it a violation of the persons fundamental rights if attempts are made to convict him and torture him as per some statute. Article 20 also protects against double jeopardy (Nemo debet pro eadem causa bis vexari[18]). This Article most importantly protects a person from self-incrimination. The police subject a person to brutal and continuous torture to make him confess to a crime even if he has not committed the same.

Article 21 of the Constitution of India:
This article has been understood in the Indian judiciary to protect the right to be free from torture. This view is held because the right to life is more than a simple right to live an animalistic existence.[19] The expression “life or personal liberty” in Article 21 includes a guarantee against torture and assault even by the State and its functionaries to a person who is taken in custody and no sovereign immunity can be pleaded against the liability of the State arising due to such criminal use of force over the captive person.[20]

Article 22 of the Constitution of India:
Article 22 provides four basic fundamental rights with respect to conviction. These include being informed of the grounds of arrest, to be defended by a legal practitioner of his choice, preventive detention laws and production before the nearest Magistrate within 24 hours of arrest of the person. Thus, these provisions are designed to ensure that a person is not subjected to any ill-treatment that is devoid of statutory backing or surpasses prescribed excesses.

Other Statutory Safeguards:
Indian Evidence Act, 1872:
A confession to police officer cannot be proved as against a person accused of any offence (Sec. 25 Evidence Act) and confession caused by threats from a person in authority in order to avoid any evil of a temporal nature would be irrelevant in criminal proceedings as, inter-alia, provided in Sec. 24. Thus, even though custodial torture is not expressly prohibited by law in India, the evidence collected by illegal means, including torture is not accepted in courts.

Code of Criminal Procedure, 1973:
Sec. 46 and 49 of the Code protect those under custody from torture who are not accused of an offence punishable with death or imprisonment for life and also during escape. Sec. 50-56 are in consonance with Article 22. Sec. 54 of the Code is a provision that to a significant extent corresponds to any infliction of custodial torture and violence. According to it, when an allegation of ill-treatment is made by a person in custody, the Magistrate is then and there required to examine his body and shall place on record the result of his examination and reasons therefore.[21] It gives them the right to bring to the Court’s notice any torture or assault they may have been subjected to and have themselves examined by a medical practitioner on their own request.[22] A compensatory mechanism has also been used by courts.[23] When the Magistrate does not follow procedure with respect to entertaining complaint of custodial torture, it calls for interference by the High Court under Sec. 482 of the Code.[24]

Another significant provision with respect to custodial torture leading to deaths is Sec. 176 of the Code where a compulsory magisterial inquiry is to take place on death of an accused caused in police custody. Sections 167 and 309 of the Code have the object of bringing the accused persons before the court and so safeguard their rights and interests as the detention is under their authorisation.[25]

Indian Police Act:
Sections 7 and 29 of the Act provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same. This can be seen in the light of the police officers violating various constitutional and statutory safeguards along with guidelines given in D.K Basu v. State of West Bengal.[26]

Indian Penal Code (IPC), 1860:
After the controversial Mathura Rape case[27], an amendment was brought about in Sec. 376 of the IPC. Sec. 376(1)(b) penalises custodial rape committed by police officers. This was a welcome change made to the section in question as it finally condemns the acts of police officers who take advantage of their authority.

Sections 330, 331, 342 and 348 of the IPC have ostensibly been designed to deter a police officer, who is empowered to arrest a person and to interrogate him during investigation of an offence from resorting to third degree methods causing ‘torture’.[28]
Judicial Precedents:

The Supreme Court is heralded as a beacon of rights against torture. Indeed, since the 1990s, the Supreme Court has come up with two innovative ways of dealing with custodial torture and custodial death cases namely, the right to compensation for custodial death and torture and the formulation of custody jurisprudence.

The case of Sheela Barse v. State of Maharashtra[29] has provided for guidelines on rights of the arrested persons especially women. The court in this case also emphasised on the need for Magistrates to inform all arrested persons of their rights. Guidelines were also given by the Supreme Court in D.K Basu v. State of West Bengal with respect to rights of arrested persons. The most significant one being the arrestee should be subjected to medical examination every 48 hours during his detention by a doctor from the approved panel of doctors and copies of all prescribed documents should be sent to the concerned Magistrates. Also, the arrestee may be permitted to meet his lawyer during interrogation.

Other Authorities:
It has been recommended in the 177th Law Commission Report by the 16th Law Commission that requisite amendments should be brought about in the Code of Criminal Procedure making it the duty of the police officers in whose custody there are arrested persons that they should ensure their safety and holding them responsible for failure of the same. Thirty years hence, this amendment has still not been incorporated. The presence of an advocate during interrogation of the arrested person is also a recommendation that has been made. The 185th Law Commission Report also makes recommendation regarding rights of arrested persons with respect to the Indian Evidence Act, 1872 which are with respect to s. 27. The Malimath Committee Report has also emphasised on the need for codification of the rights of the arrested persons.[30]

Despite the above, the abominable figures regarding custodial torture have still not improved. One very simple reason behind this could be that persons who are supposed to protect people are themselves the wrongdoers. The criminal justice system in India is supposed to use the reformist approach; however, the approach is such that animals get better treatment.

Conclusion:
The very ideas of a human being in custody save for protection and nurturing is an anathema to human existence. The word custody implies guardianship and protective care. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody.

In a complaint of custodial torture, the court should not adopt a casual approach to it on the ground that it has been made by a habitual offender.[31] It is a perennial problem of statecraft.[32] It therefore, becomes imperative to evolve a system of state governance that allows the police to effectively maintain law and order and to prevent and detect the commission of a crime without jeopardizing legal rights; privileges and claims of laymen. Such a system obviously warrants appropriate control over the police in order to discourage them from exercising their power in a capricious manner. Similarly, an effective institutional grievance-redressal mechanism to vindicate ‘police excesses’ is also the need of the hour.[33]
As held by the Supreme Court, “custodial torture” is a naked violation of human dignity and a degradation which destroys, to a very large extent human personality.


TORTURE  BY  DOCTORS  

 Even medical professionals , dotors lie , give  false medical reports. , forensic reports  thus facilitating the escape of rich crooks  and  meting out unjust punishment to innocents. The courts of law depends on medical reports as sacrosanct and awards punishment to innocents letting out rich crooks.

Medical torture describes the involvement and sometimes active participation of medical professionals in acts of torture, either to judge what victims can endure, to apply treatments which will enhance torture, or as torturers in their own right. Medical torture may be called medical interrogation if it involves the use of their expert medical knowledge to facilitate interrogation or corporal punishment, in the conduct of torturous human experimentation or in providing professional medical sanction and approval for the torture of prisoners. Medical torture also covers torturous scientific (or pseudo-scientific) experimentation upon unwilling human subjects.

 

Doctors from both non-democratic and democratic countries are involved in torture. The majority of doctors involved in torture are doctors at risk. Doctors at risk might compromise their ethical duty towards patients for the following possible reasons: individual factors (such as career, economic or ideological reasons), threats, orders from a higher ranking officer, political initiatives, working in atrocity-producing situations or dual loyalty. In dual loyalty conflicts, factors that might compromise doctors’ ethical obligations towards detainees/patients are: ideological totalitarianism, moral disengagement, victim blame, patriotism, individual factors or threats. Another important reason why doctors are involved in torture is that not all doctors are trained in addressing human rights issues of detainees. Torture survivors report that they have experienced doctors’ involvement in torture and doctors themselves report that they have been involved in torture. Testimonies from both torture survivors and doctors demonstrate that the most common way doctors are involved is in the diagnosis/medical examination of torture survivors/prisoners. And it is common before, during and after torture. Both torture survivors and doctors state that doctors are involved during torture by treatment and direct participation. Doctors also falsify journals, certificates and reports. When doctors are involved in torture it has devastating consequences for both torture survivors and doctors. The consequences for the survivors can be mistrust of doctors, avoidance of seeking doctors’ help and nightmares involving doctors. Mistrust and avoidance of doctors could be especially fatal to the survivor, as it could mean a survivor who is ill may not seek medical attention. When the unambiguous role of the doctor as the protector and helper of people is questioned, it affects the medical profession all over the world.

Medical Negligence & Connivance of Doctors in custodial torture

It is a matter of immense pleasure and proud privilege for me to present this premier issue of official journal of Punjab Academy of Forensic Medicine and Toxicology. I fully acknowledge many shortcomings & pitfalls in this issue which are bound to be there, when an issue is brought out in a short duration. It is an endeavor to channelise the problems and their solutions by highlighting them. I hope you will like the contents of this issue and will be generous enough to appreciate the spirit behind this humble effort. Environment pollution is the burning problem of the day. Supreme Court has to intervene in many cases of environment pollution, when other agencies responsible for maintaining it have failed to do their duties well. It is also an important part of our duty, when we are dealing with Toxicology to lay proper emphasis on environment pollution so that we can provide a breeding ground for the new ideas & thoughts to make our environment clean. Today there is a chaos as far as our environment is concerned. We are drinking poisons, we are eating poisons and we are inhaling poisons and this trend is on the “increase. It is not that we do not have knowledge of this, but for – short term benefits we are ignoring it. The authorities do not have the will & determination to implement the laws. We will have to act firmly for our own survival and make this earth a better living place for our next generations. This journal is in a budding stage and I aspire as it grows it will give its due contribution towards improving the vitiated atmosphere on this holy planet. In the medico-legal practice many problems are faced by people & doctors. It will be our emphasis to highlight these in the coming issues and try to find out a solution for these problems. Make it a point to share your problems & views, because these are common & let others utilize these solutions for the benefit of masses. R.K. Gorea JPAFMAT, 2001, Vol.: 1 1 MEDICAL NEGLIGENCE IN CUSTODIAL TORTURE Dr. J.S. DALAL, Professor & Head Dr. R.K. GOREA, Associate Professor Dr. K.K. AGGARWAL, Assistant Professor Dr. A.S. THIND, Assistant Professor Dr. S.S. SANDHU, Lecturer Department of Forensic Medicine, G.G.S. Medical College, Faridkot.

 

 India is a democratic country. Although it has already celebrated the silver jubilee of her independence, but in some cases the word of “Independence” & “Democracy” is forgotten particularly by police personnel, who use third degree methods during the investigations in police stations. When the torture crosses the limit, the help of the doctors is sought. Cases have been reported, where the doctor also showed indifference in treatment of such cases. The present paper is a typical example which falls in this category. KEYWORDS: Police torture, Medical negligence.

 

Physical torture by third degree methods is a common mode adopted by the policeman during Interrogation. Most of the other countries do interrogations by scientific methods like “lie detector” etc., but Indian police still lacks such facilities and it has no option but to apply various methods of torture for extracting truth. CASE HISTORY: The present case is an example of such a case. It was in the year 1993 that a person was arrested by police and tortured. When the condition of the victim became serious, he was taken to civil hospital where he was examined by emergency medical officer According to the report by this medical officer, “the patient was conscious, well oriented in time and space and all his vital signs were normal. He had difficulty in walking and his left thigh and left knee were tender and swollen”, except this no other injury was described on his body. The patient was admitted in the hospital and analgesics and local ointment like thromophob and hot fomentation were prescribed to him. Next day the patient developed the fever which went on increasing for the next 3-4 days and ultimately the patient died in a few days. A case was registered under section 304 IPC against the police. The postmortem examination was done by a board of doctors and in the postmortem report as much as 9 injuries were present on his body. His left leg was swollen with abrasions over it. Other injuries were abrasions and there was no fracture or injury to the vital organ anywhere. On dissection of the thigh, it was found to have frank pus and about 300 ml pus oozed out on incision. The cause of death given in the postmortem report was septicemia as a result of injury to the left thigh which was antemortem in nature and sufficient to cause death in the ordinary course of nature. It was, therefore, clear that there was discrepancy in the report of doctor who first examined and admitted the patient and those who conducted the postmortem. Therefore, JPAFMAT, 2001, Vol.: 1 2 another board was constituted for opinion in this case and the board opined that medical negligence played a role in the death of the victim. Had the thigh infection been treated properly in the form of pus drainage by incision etc., with judicious use of antibiotics, the patient could have been saved. This case was referred to our department and after going through the entire record we were also of the same opinion and agreed with the opinion of the second board. This opinion was accepted by the police and the case was converted from 304 IPC to 323 IPC.

 

 

Doctors Who Designed CIA Torture Programs Finally Get Sued

 

The prisoners were held in pitch-dark cells in a secret CIA facility. As part of their torture regimen, they were forced to listen to music — everything from heavy metal to the theme song from Barney & Friends — blasted at ear-damaging levels, designed to break them psychologically. Now, years later, the doctors who designed that program are getting sued, in litigation filed by the ACLU.

In the early 2000s, the CIA contracted with two psychologists, James Mitchell and John Bruce Jessen, to help them design interrogation methods for detainees held in secret prisons in places such as Afghanistan. The methods Mitchell and Jessen designed included “stuffing them inside coffin-like boxes, exposing them to extreme temperatures and ear-splitting levels of music, starving them,” and depriving them of sleep, according to the Senate’s report on CIA torture. If it wasn’t bad enough that the men who were held in these secret detention sites were tortured repeatedly, a recent report on the CIA’s torture program found that it didn’t even lead to useful information.

TO THIS DAY THE TWO MEN HAVE RECEIVED NO APOLOGIES OR COMPENSATION FOR THEIR ORDEAL.

Two survivors and the family of a man who was killed in Afghanistan’s notorious “Salt Pit” prison site are suing Mitchell and Jessen for designing and performing experiments on them that have left them suffering years after they were freed. Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud were both tortured for years, and to this day they have received no apologies or compensation for their ordeal. The family of Gul Rahman, an Afghan man who died of hypothermia while in secret custody, has never received his body.

Although other prisoners have filed lawsuits over their treatment by U.S. agents, this is the first legal action taken against the healthcare professionals who created torture methods and trained the CIA to use them. It’s also the first lawsuit filed by former prisoners since the Senate released a 525-page summary of its report on the torture program, and ACLU lawyer Dror Ladin told Refinery29 that the details now available to the public will make Suleiman’s and Ben Soud’s cases stronger. “Previous lawsuits involving the CIA torture program had a lot less public information to work with,” Ladin said, and the government was able to keep enough information secret that it was all but impossible for former detainees to make their cases.

OUR SINGLE BIGGEST CONCERN IS THAT THERE HAS BEEN ZERO ACCOUNTABILITY FOR THE TORTURE PROGRAM.

DROR LADIN, STAFF ATTORNEY, ACLU NATIONAL SECURITY PROJECT

Suleiman lives in Zanzibar now with his family, and despite suffering through hours of painfully loud music — everything from metal to the Irish boy band Westlife — he uses Bob Marley songs to calm himself when he starts to have flashbacks to his time in detention.

“Our single biggest concern is that there has been zero accountability for the torture program,” said Ladin. “Without that — when you have impunity for torturers, when you don’t even apologize to the victims of it — it’s difficult to see how we’re not going to have history repeat itself in the future. We can just look forward without accounting for what we did in the past. We run a tremendous risk of going down this path.”

One of the strangest things about the two psychologists who designed the program is that they not only received $81 million in government money for teaching people how to inflict physical and psychological damage on others, but they’ve also never faced any penalties for violating professional ethics. “It’s mind-boggling that ethics complaints against them never went anywhere,” Ladin said.

What would success look like for these men? “A successful outcome would be that this case goes forward, and these three victims and survivors get their day in court and get to tell their story,” Ladin says. “A further success would be when these obvious violations of international law, that a judge and jury agree that these plaintiffs should receive some compensation for it.”

 

 

When Doctors Torture

 

The Senate released its report on the CIA’s interrogation program on Tuesday, revealing horrendous details of the torture tactics used on prisoners, including waterboarding, sleep deprivation, and “rectal feeding.” Complicit in this treatment were several “medical officers” (it’s not explicitly stated whether they hold M.D.s), who enabled, oversaw, and designed many of the techniques.

Two psychologists, Dr. James Mitchell and Dr. Bruce Jessen, were paid $81 million to design the program, and medical officers and physicians’ assistants are cited throughout the report as consultants who advised on things like forcing detainees to stand on broken limbs and “rehydrating” via a rectal tube rather than a standard IV infusion. While in many medical schools around the United States, students swear the Hippocratic Oath, saying out loud the words “may I long experience the joy of healing those who seek my help,” CIA medical officers used their intimate knowledge of the human body as a weapon, to harm people the U.S. government deemed enemies.

 

Dr. Steven Miles is a professor at the University of Minnesota Medical School, a board member of the Center for Victims of Torture, and author of Oath Betrayed: America’s Torture Doctors. He has been studying doctors’ involvement in torture programs since photos of the human rights violations at the Abu Ghraib prison in Iraq came to light in 2003. He maintains the website Doctorswhotorture.com, which tracks physician standards of conduct and punishments for doctors who aid torture around the world. We spoke by phone about the CIA report, the role doctors play in interrogation, and how they could be held accountable.


Julie Beck: What role did doctors play in this CIA-mandated torture, and how integral was it?

“Professional codes describe doctors’ duties not only to avoid participating in torture, but to document and report it.”

Steven Miles: What’s new here is the CIA side. The role of doctors in torture during the War on Terror has been pretty well excavated on the Defense Department side, but the CIA [has some exemptions] from Freedom of Information Act requests, so that’s remained hidden. Essentially the doctors and psychologists were built in to the entire torture system. They weren’t simply bystanders who were called in to respond when the system went off the rails. Some doctors apparently protested this. But they kept their protests inside [the CIA], they never went outside, which they should have done when they saw these types of abuses.

 

In general, doctors in torture have a couple roles. Number one, they design methods of torture that do not leave scars. For example, the so-called “rectal feeding” which is actually a medieval technique in which the intestines are inflated with a viscous material to cause intestinal pain. The docs are also involved in making sure that the prisoners who weren’t supposed to die didn’t die. The third thing doctors do is they falsify medical records and death certificates to conceal the injuries of torture. [Ed.: Miles has written on this in the context of Abu Ghraib.]

Beck: When we’re talking about how integral it was, is the medical knowledge that doctors bring to these operations something interrogation programs could not do without? If every doctor in the world refused to participate, would they be out of luck?

Miles: There are two answers to this question. One is, doctors get the prisoners that the Red Cross never sees. So in a sense doctors are frontline human-rights monitors who get into places where regular human rights groups can’t go. Number two, there are a set of professional codes, that are endorsed by the American Medical Association and the World Medical Association, that describe doctor’s duties not only to avoid participating in torture, directly or indirectly, but also a duty to document it and to report it, going outside the chain of command if necessary.

As human rights groups have put additional pressure on regimes around the world with regard to torture, regimes that are responsive to human rights pressure want to use torture that doesn’t leave scars. So they prefer methods like asphyxiation, isolation, cramming people in small boxes, white rooms with loud noises, because it just destroys people psychologically. Whereas regimes like Assad’s regime [in Syria] don’t really care if there are scars. So there is no role for medicine in that respect in an Assad-type regime or in North Korea’s regime.

“Doctors play a critical role in torture in regimes that don’t want to leave scars, and that includes the United States.”

Beck: So really the doctors become more important in places like the U.S. where if things like this got out, people would pressure the government?

Miles: Yes, doctors play a critical role in torture in regimes that don’t want to leave scars, and that includes the United States.

 

Beck: Why would people use medical knowledge and expertise learned to heal people for the opposite purpose?

Miles: It’s pretty interesting, I’m writing a book on just that question. The docs who get involved in this, number one, are careerists. They get involved for rank and career, and the regimes never coerce them, or extremely rarely coerce them. Instead what happens is the regimes treat them as some kind of elite. The docs are generally not sadists. This is not the stuff of Saw, for example. They go along with the dominant political theme of the prison: “These are our enemies and we gotta squeeze them for the information.” The thing that’s so interesting is that there is research showing that force of interrogation does not work, that it’s counterproductive. These docs seem to be entirely unaware, not only of the ethics codes, but also of the ineffectiveness of these interrogation strategies, that they never mount a protest.

Beck: What is the relationship between doctors and the military in these War on Terror prisons? I’m sure it’s a very different environment in which to be a doctor as opposed to a hospital.

Miles: The CIA doctors were under an office within the CIA called the Office of Medical Services. That’s not military, that’s CIA.

You had situations where doctors were seeing people with fractures, saying they shouldn’t be made to stand, and the people were standing and the docs weren’t  reporting that the medical regime wasn’t being followed. That’s a form of passive complicity. The docs who supervise and say, “Well, what you should do is use medical saline rather than distilled water when you waterboard people so that you don’t make the blood salts dilute,” that’s active participation.

 

For example, if I flood your lungs and throat with just plain tap water, what happens is the sodium in your blood and the potassium in your blood goes down because of the distilled water. So it’s less likely to be lethal if I flood you with medical saline (the kind of stuff you see hanging on IV bags) because then those electrolytes don’t get changed. From the prisoner’s standpoint, he’s still experiencing a drowning.

 

Beck: We’ve talked about the medical side, but what does it mean that there were psychologists who helped design this program? What role does psychology and that knowledge base play?

Miles: Essentially what happened is that the DOD constructed a deal with the American Psychological Association to craft a new code of ethics for War on Terror interrogations.

[Ed.: The APA has authorized an independent review of allegations that it colluded with the George W. Bush administration on torture, and has stated: “In the meantime, the Board again reiterates the Association’s longstanding policy prohibiting any psychologist involvement in torture and cruel, inhuman or degrading treatment or punishment. There are no exceptions to that policy.”]

The military took two psychologists [Mitchell and Jessen] who took the theory oflearned helplessness, and they decided to apply that to interrogation. Learned helplessness as a model for interrogation has been discredited. Learned helplessness works like this. If you shock a dog every time it turns to the right, then it’ll start always turning to the left. If you shock a dog no matter which way it turns, eventually the dog just lies down and takes it. The theory of this interrogation system was, if we punish these prisoners no matter what, they will become helpless and compliant to whatever we want. That is, they’d give up information.

Beck: Do you think these doctors who were involved are going to be held accountable? Whether it’s through the law or through medical licensing boards?

 

Miles: On the website I maintain, I trace the accountability of doctors around the world since the Nazis, not including the Nazis. Accountability has been slowly building throughout the world. There have been a half dozen docs who’ve been subject to licensing-board hearings, and in all cases the licensing board has declined to get involved. These have been War on Terror cases.

There is a law in the U.S. against torture. Theoretically these people could be charged for violations of that federal law. But the DOJ basically said, “Since we all said this was legal at the time, we’re not going to prosecute them.”

The licensing board in these cases has several options. They can suspend a license, which is the typical punishment around the world, or they can revoke the license. So the licensing board hearings here could address that. Significantly, the American Medical Association still hasn’t commented on the Senate report [as of Thursday]. The AMA is not exerting leadership here.

[Ed.: The AMA’s official policy on torture reads, in part: “Physicians must oppose and must not participate in torture for any reason. Participation in torture includes, but is not limited to, providing or withholding any services, substances, or knowledge to facilitate the practice of torture. Physicians must not be present when torture is used or threatened … Physicians may treat prisoners or detainees if doing so is in their best interest, but physicians should not treat individuals to verify their health so that torture can begin or continue.]

 

Beck: Do other countries have different laws or standards of punishment in these cases?

“The doctors and psychologists were built into the interrogational abuses. It wasn’t a matter of turning off protests, it was a matter of a structured system of complicity.”

Miles: Brazil, Chile, Argentina, and Uruguay have punished bunches of doctors. Rwanda punished bunches of doctors. Rwanda probably punished the largest percentage of its physician workforce of any country on the planet. Then you’ve got countries like Great Britain, Guyana, India, Pakistan, Sri Lanka, Greece, and these countries have punished a token number of physicians, one or two, even though the involvement of physicians in torture has been much more widespread.

 

Beck: Are there any other important aspects of this that we haven’t talked about yet?

Miles: The first question I asked when I saw the Abu Ghraib pictures was, “My god, where were the doctors when all this was going on? How did the government turn off the protests from the medical system?” What I discovered instead was that the doctors and psychologists were built into the interrogational abuses. So it wasn’t a matter of turning off their protests, it was a matter of a structured system of complicity. This has greatly harmed the U.S. medical community’s ability to speak on behalf of doctors who are protesting torture around the world.

 

Let me give you a few examples. There was a psychiatrist in Russia, in the Soviet Union, who was pointing out Russia had built psychiatric prisons to punish dissidents. His name was Anatoly Koryagin. He smuggled out a secret paper in a medical journal called The Lancet, and he was immediately sent to [prison]. The medical community in the U.S. and Europe was able to secure his release.

There was a doctor by the name of Pourandarjani in Iran who told of torture in Iranian prisons. But his testimony in Iran happened [in 2009] after the medical abuses in Abu Ghraib were out. [Ed. Pourandarjani died of an alleged heart attack in November 2009—some human rights groups have called his death “suspicious.”]Our ability to be a leader in these areas has huge consequences for people who are doing very dangerous human rights work around the world. And we’ve totally compromised ourselves.

 

 

 

 

How narco tests gave more misses than hits

 

In the last few years, the city police have used narco-analysis and brainmapping tests as a “secret weapon” against suspects in high-profile cases. However, often the results have been less than satisfactory and in some cases have led to major setbacks.

The Mumbai police’s application to conduct narco-analysis on Suraj Pancholi, son of Bollywoodactor Aditya Pancholi, who was arrested for allegedly abetting actor Jiah Khan’s suicide, has once again brought attention on the much-abused test.

“At times, the police do resort to means, like the narco-analysis tests, as a shortcut to investigation or as a convenient tool to get their way. This should not be encouraged,” said criminal lawyer Majeed Memon. “The facts of this case [Jiah’s suicide] do not justify subjecting the accused [Suraj] to narco-analysis test and is undesirable.”

 

A narco-analysis test involves using sedatives, such as sodium pentothal or sodium amytal, to put a person in hypnotic-like state, rendering him unable to lie. The person then answers only specific questions and the answers are taken to be spontaneous. A narco-analysis test report can only be used as supportive evidence; it is not admissible as standalone evidence in court.

One narco-analysis test that had left the state government red-faced was that of Abdul Karim Telgi, main accused in the fake stamp paper scam case. During the test in 2004, Telgi named leading Maharashtra politicians and of making payments to them. Then deputy chief ministerChhagan Bhujbal had to quit following the revelations. But investigations could not corroborate his statements.

More recently, the police’s efforts to use narco tests to make breakthroughs in serious offences, such as rape and murder, have come a cropper.

Mohammed Ajmeri Sheikh, who was accused of raping and murdering a nine-year-old girl in Kurla in 2010, was subjected to the test with the hope that he would confess to raping and killing other girls in the areas, but the police got no leads. They were unable to file a chargesheet within the stipulated 90 days and Ajmeri got bail.

The other high-profile case involved Vijay Palande arrested for the murder of Delhi businessman Arun Tikku in Lokhandwala in 2012. Palande reportedly confessed to killing aspiring producer Karan Kakkar and dumping the body at Khumbarli ghat near Chiplun. There they stumbled upon the skeletal remains of an identified body. The narco test on Palande remained inconclusive and the crime branch could not identify the skeletal remains.

In other parts of the country, too, probes using narco tests have not been always successful. The results of the tests on Noida dentists Dr Ramesh Talwar and his wife Nupur in connection with the murders of their daughter Aarushi and domestic help were inconclusive.In Hyderabad, the police were unable to extract any information from Abdul Kaleem and Imran Khan, alleged associates of HUJI leaders Abu Hamza and Shahed alias Bilal, accused in the August 2007 twin blasts in that city.

Narco analysis misses!

2012 – Vijay Palande case

Police subject Vijay Palande, an alleged serial killer”, to narco analysis test.

Status: Tests were inconclusive as the police were unable to find the identity of a body they found in Kumbharli ghat.

2010 – Kurla serial rape and murder cases

Police conduct narco analysis tests on Mohammad Ajmeri Shaikh, an accused in the rape and murder of minor girls in Kurla.

Status: Test fail to yield any positive results for the police. Police fail to file chargesheet within the stipulated 90 days and the court releases Ajmeri on bail.

2010 – Arushi murder case.

Narco analysis was conducted on Dr. Rajesh Talwar and his wife Nupur in the Arushi murder case.

Status: The tests were inconclusive and the trial in the case is currently stayed.

2007 – Hyderabad twin blasts

Abdul Kaleem and Imran Khan, accused in the Hyderabad twin blasts case undergo narco analysis tests.

Status: Police fail to get any breakthrough in investigations or suspected connection with the 2005 terror attack on the Indian Institute of Science shootout

2004 – Telgi case

Abdul Karim telgi, the main accused in the multi crore fake stamp scam case was administered narcoanalysis tests. During his tests, Telgi had made allegations against some top politicians from Maharashtra.

Status: While Telgi was convicted in some of the cases, the allegations against the politicians came to naught.

 

Is Narco Analysis a Reliable Science? – Present Legal Scenario In India.

 

The term Narco-Analysis is derived from the Greek word narkç (meaning “anesthesia” or “torpor”) and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. The term narco-analysis was coined by Horseley. Narco analysis first reached the mainstream in 1922, when Robert House, a Texas obstetrician used the drug scopolamine on two prisoners.

 

The search for effective aids to interrogation is probably as old as man’s need to obtain information from an uncooperative source and as persistent as his impatience to shortcut any tortuous path. In the annals of police investigation, physical coercion has at times been substituted for painstaking and time consuming inquiry in the belief that direct methods produce quick results. Development of new tools of investigation has led to the emergence of scientific tools of interrogation like the narco analysis test. Such tests are a result of advances in science but they often raise doubts regarding basic human rights and also about their reliability. Legal questions are raised about their validity with some upholding its validity in the light of legal principles and others rejecting it as a blatant violation of constitutional provisions.

 

A Brief Outline of The Narco Analysis Test-

The narco analysis test is conducted by mixing 3 grams of Sodium Pentothal or Sodium Amytal dissolved in 3000 ml of distilled water. Narco Test refers to the practice of administering barbiturates or certain other chemical substances, most often Pentothal Sodium, to lower a subject’s inhibitions, in the hope that the subject will more freely share information and feelings. A person is able to lie by using his imagination. In the narco Analysis Test, the subject’s inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like state efforts are made to obtain “probative truth” about the crime. Experts inject a subject with hypnotics like Sodium Pentothal or Sodium Amytal under the controlled circumstances of the laboratory. The dose is dependent on the person’s sex, age, health and physical condition.

 

The subject which is put in a state of Hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions. The subject is not in a position to speak up on his own but can answer specific but simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers.

 

Wrong dose can send the subject into coma or even result in death. The rate of administration is controlled to drive the accused slowly into a hypnotic trance. The effect of the bio-molecules on the bio-activity of an individual is evident as the drug depresses the central nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated by the investigating agencies in the presence of the doctors. The revelations made during this stage are recorded both in video and audio cassettes. The report prepared by the experts is what is used in the process of collecting evidence. This procedure is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.

 

Other associated truth finding tests-

Apart from narco test there are also other two kinds of tests which are popularly used on the convict for extraction of truth, these are-

I. Polygraph or lie Detection Test:

It is an examination, which is based on an assumption that there is an interaction between the mind and body and is conducted by various components or the sensors of a polygraph machine, which are attached to the body of the person who is interrogated by the expert. The machine records the blood pressure, pulse rate and respiration and muscle movements. Polygraph test is conducted in three phases- a pretest interview, chart recording and diagnosis. The examiner (a clinical or criminal psychologist) prepares a set of test questions depending upon the relevant information about the case provided by the investigating officer, such as the criminal charges against the person and statements made by the suspect. The subject is questioned and the reactions are measured. A baseline is established by asking questions whose answers the investigators know. Lying by a suspect is accompanied by specific, perceptible physiological and behavioural changes and the sensors and a wave pattern in the graph expose this. Deviation from the baseline is taken as a sign of lie. All these reactions are corroborated with other evidence gathered. The polygraph test was among the first scientific tests to be used by the interrogators.

 

It was Keeler who further refined the polygraph machine by adding a Psycho-galvanometer to record the electrical resistance of the skin.

 

II. P300 or the Brain Mapping Test:

This test was developed and patented in 1995 by neurologist Dr. Lawrence A. Farwell, Director and Chief Scientist “Brain Wave Science”, IOWA. In this method, called the “Brain-wave finger printing”; the accused is first interviewed and interrogated to find out whether he is concealing any information. Then sensors are attached to the subject’s head and the person is seated before a computer monitor. He is then shown certain images or made to hear certain sounds. The sensors monitor electrical activity in the brain and register P300 waves, which are generated only if the subject has connection with the stimulus i.e. picture or sound. The subject is not asked any questions. Dr. Farwell has published that a MERMER (Memory and Encoding Related Multifaceted Electro Encephalographic Response) is initiated in the accused when his brain recognizes noteworthy information pertaining to the crime. These stimuli are called the “target stimuli”. In a nutshell, Brain finger printing test matches information stored in the brain with information from the crime scene. Studies have shown that an innocent suspect’s brain would not have stored or recorded certain information, which an actual perpetrator’s brain would have stored. In USA, the FBI has been making use of “Brain mapping technique” to convict criminals.

 

Narco Analysis in India-

A few democratic countries, India most notably, still continue to use narco analysis. This has come under increasing criticism from the public and the media in that country. Narco analysis is not openly permitted for investigative purposes in most developed and/or democratic countries. In India, the narco analysis test is done by a team comprising of an anesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer, and supporting nursing staff. The forensic psychologist will prepare the report about the revelations, which will be accompanied by a compact disc of audio-video recordings. The strength of the revelations, if necessary, is further verified by subjecting the person to polygraph and brain mapping tests.

 

Narco analysis is steadily being mainstreamed into investigations, court hearings, and laboratories in India. However, it raises serious scientific, legal, and ethical questions. These need to be addressed urgently before the practice spreads further. Narco analysis has become an increasingly, perhaps alarmingly, common term in India. It refers to the process of psychotherapy conducted on a subject by inducing a sleep-like state with the aid of barbiturates or other drugs. In a spate of high profile cases, such as those of the Nithari killers and the Mumbai train blasts, suspects have been whisked away to undergo an interview drugged with the barbiturate sodium pentothal.

 

Narco Analysis from Constitutional & Legal Stand Points-

The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3). It deals with the privilege against self-incrimination. It has its equivalents in the Magna Carta, the Talmud, and the law of almost every civilized country. The privilege against `self incrimination is a fundamental canon of Common law criminal jurisprudence.

 

The characteristic features of this principle are-

-The accused is presumed to be innocent,

-That it is for the prosecution to establish his guilt, and

-That 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.

 

Art. 20(3) which embody this privilege reads, “No person accused of any offence shall be compelled to be a witness against himself”.

 

On analysis, this provision will be found to contain the following components:

-It is a right available to a person “accused of an offence”;

-It is a protection against such “compulsion” “to be a witness”;

-It is a protection against such “compulsion” resulting in his giving evidence against himself.

 

All the three ingredients must necessarily coexist before the protection of Art 20(3) can be claimed. If any of these ingredients is missing, Art. 20(3) cannot be invoked.

 

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. 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 hypnotic state of mind) it should stand to be rejected by the court. The main issue thus is the question of its admissibility as a scientific technique in investigations and its ultimate admissibility in court as forensic evidence.

 

Section 45 of the Indian Evidence Act, 1872 does allow experts’ opinions in certain cases. It reads:

“When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impression, the opinions upon that point or persons especially skilled in such foreign law, or of science, or art, or as to identity of handwriting or finger impressions are relevant.”

However this section is silent on other aspects of forensic evidence that can be admissible in court in criminal proceedings.

 

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 self-incrimination. 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 vs 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.

 

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.

 

Some Notable Events & Cases of Narco Analysis in India-

I. In a 2006 judgment ( Dinesh Dalmia v State ), the Madras High Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said 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.” There are two fallacies in this reasoning. First, if narco analysis is all that it is made out to be by the Bangalore FSL, the accused will involuntarily answer questions posed to him during the interview. The second fallacy is that it is incorrect to say that the accused is merely taken to the lab against his will. He is then injected with substances. The breaking of one’s silence, at the time it is broken, is always technically `voluntary.’ Similarly, it can be argued that after being subject to electric shocks, a subject `quite voluntarily’ divulges information. But the act or threat of violence is where the element of coercion is housed. In narco analysis, the drug contained in the syringe is the element of compulsion. The rest is technically voluntary.

 

II. In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: “No person accused of any offence shall be compelled to be a witness against himself.” Statements made under narco analysis are not admissible in evidence. However, recoveries resulting from such drugged interviews are admissible as corroborative evidence. This is, arguably, a roundabout way to subverting the right to silence — acquiring the information on where to find the weapon from the subject when, in his right senses, he would not turn witness against himself. Arguments have been made that narco analysis constitutes mental torture. It works by inhibiting the nervous system and thus lowering the subject’s inhibitions. It is not difficult to interpret this as a physical violation of an individual’s mind-space. The State police departments are responsible for generating demand for the process. The decision to conduct narco analysis is usually made by the Superintendent of Police or the Deputy Inspector General handling a case.

 

A high-ranking official in the Karnataka Police told The Hindu that police departments in India have poor skills when it comes to collection, collation, and presentation of evidence before the courts. Consequently, when there is enormous pressure on a police department to solve a case, sending suspects to narco analysis not only buys time but also gives the impression that something concrete has been done about the case.

 

III. 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. The bench, which also included Justice R.V. Raveendran and Justice J.M. Panchal, heard the arguments by counsel of various people, including Santokhben Jadeja from Gujarat, popularly known as ‘Godmother’, and some accomplices of fake stamp paper case accused Abdul Karim Telgi. 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.

 

During the arguments, Vahanvati justified the use of these three tests, saying they have the legal mandate under Section 53 of the Criminal Procedure Code (CrPC), which lists a host of various modern techniques like DNA fingerprinting and collection of blood samples as perfectly legal tools to probe a crime. He said the term ‘such other tests’ occurring in the explanatory note of the Section 53 includes these three tests too.

 

‘If these tests are properly considered to be steps in the aid of investigation and not for obtaining incrimination statements, there is no constitutional infirmity whatsoever,’ said Vahanvati. ‘These tests are scientific methods in furtherance of investigation. All these tests are considered to be the part of the process of collection of some subsequent evidence.

 

‘These tests may provide some clues to the investigative agency to collect some evidence but the statements given by the accused against themselves during these tests are not of any evidentiary value,’ clarified the law officer.

 

But Dave during his arguments, contended that parliament never intended to include these tests as tools for probe as Section 53 was last amended in 2005, when a list of various modern scientific techniques was included in it as legal tools for investigation. Dave also contended that the use of these three tests as tools of investigation is not validated by Article 20(3) of the constitution, which says: ‘No person accused of any offence shall be compelled to be a witness against himself.’

 

IV. In Shashi murder case, Court allows narco-analysis. Vijaysen Yadav, the main accused in the disappearance and murder case of Faizabad law student Shashi, has gone through polygraph and narco-analysis test from January 12 to 26. Faizabad Chief Judicial Magistrate Shailesh Tiwari permitted the police on Friday to conduct the tests at the Central Forensic Laboratory in Bangalore.

 

In his order, the CJM said the tests on Vijaysen will be conducted in judicial custody and prohibited investigating Officer Sharat Chandra Pandey from intervening in any matter during the process of tests. The court also asked him not to accompany Vijaysen to Bangalore.

 

V. The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra, 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 as mentioned above, allowing the SIT to conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul Karim Telgi. The verdict 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 any “statement” being made and the statement made under narco analysis was not admissible in evidence during trial. The judgment also held that these tests involve “minimal bodily harm”.

 

VI. Narco-analysis of Moninder Singh Pandher, had started on Tuesday, January 09, The narco-analysis test of the prime accused in the Noida serial murder case Moninder Singh Pandher was conducted at the Directorate of Forensic Laboratory. Pandher and Koli have been accused of serial killing of women and children in Nithari village, in Noida, Uttar Pradesh. The Nodia police had brought Pandher and his servant Surendra Koli to DFS on January 5 for forensic tests. The tests are expected to go on for approximately eight hours, the sources said.

 

VII. A court in Kerala recently pronounced that no court order is required to do a narco analysis, Disposing of a petition filed by the CBI seeking permission of the court, the magistrate said 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.

 

The Degree of Admission of These Truth Finding Tests in Court-

Lawyers are divided on whether the results of Narco Analysis and P300 tests are admissible as evidence in courts. “Confessions made by a semi-conscious person is not admissible in court. 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 assess its admissibility,” advocate P. R Vakil told rediff.com. “Under certain circumstance, a person may hold a certain belief. By repeatedly thinking about an issue in a particular way, he begins to believe that what he is thinking is right. But it need not necessarily be the truth,” Vakil explained.” Results of such tests can be used to get admissible evidence, can be collaborated with other evidence or to support other evidence. But if the result of this test is not admitted in a court, it cannot be used to support any other evidence obtained the course of routine investigation.”

 

Criminal lawyer Majeed Memon said, “If the courts give permission to conduct these tests, then only it can decide the admissibility of the test results and other related evidence. Such reports can be used as evidence or to support other evidence.” Another criminal lawyer Sham Keswani has a different view. “Such tests don’t have any legal validity. They can only assist the police investigation.” But, in case a person is not affected by the chemical, he might take some wrong names (to mislead investigators). The results of such tests can be used to support other evidence,” he said.

 

Conclusion-

Law is a living process, which changes according to the changes in society, science, ethics and so on. 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. The criminal justice system should be based on just and equitable principles. The issue of using narco analysis test as a tool of interrogation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be clearer in the near future. In a situation where narco analysis is gaining judicial acceptances and supports despite being an “unreliable & doubtful” science, we have to seroiusly rethink about its legal and constitutional validity from human rights perspective.

 

Violence and the ethical responsibility of the medical profession

Amar Jesani

 

 

Prof. Upendra Baxi, a well known expert on law and a former vice chancellor of Delhi and South Gujarat universities, in his comments on Women’s Studies in the ICSSR Newsletter seven years back, made some incisive and disturbing comments on the coverage of violence in social science discourses in India. “Mainstream social sciences in India have altogether ignored the fact that India is a very violent society. There do not exist even pre- theoretical discourses on violence in India. Compared with the practice of violence in India, there is a total denial of discourse on violence.”1

Health care professionals have fared even worse than social scientists.

The concern for violence is conspicuous by its virtual absence in medical discourses. The special medical needs and rehabilitation of victims and survivors of violence are hardly ever discussed by doctors. Is this because health care workers do not come in contact with the victims and survivors of violence? The answer is a categoricalno. Violence invariably inflicts physical or psychological trauma and in any violence, the victims and survivors come in contact with health care workers, the last and extreme contact being established during autopsies on victims of violence. The apathy of medical personnel is all the more disturbing simply because of the many professions in our country, medicine has the greatest claim to nobility, compassion, humanity, rationality and scientific attitudes.

Unlike some extremely backward countries, we have nearly a million (9,27,624 in 1991) formally trained doctors, 42% of whom are trained in modern medicine – a ratio of one doctor for less than a thousand persons in the country as whole and one doctor for less than five hundred in the urban areas. An estimated 85% of all trained doctors work in the private sector3. Yet, the conscious response of the profession to one of the bigger epidemics of violence in recent times in our country has been grossly inadequate. We have either shown plain indifference or clumsy and ad hoc crisis management when faced with violence. This does not auger well for a profession claiming to have scientific basis for its practice. The implied failure in discharging social responsibility raises ethical questions for the profession at large in the country.

Violence and the medical profession
The science of medicine incorporates sociological and epidemiological understanding. Medicine, and for that matter any science, not geared to real social andepidemiological issues loses its humanitarian content. The violence described and documented by voluntary groups is not that by common criminals. The violence covered here includes the deprivation of human and democratic rights, is associated with social and political mobilisation, is often inflicted on helpless, oppressed, unarmed or innocent persons and has notable ideological underpinnings. There are strong, extreme and sometimes genuine differences within the social groups on the attitude society should take on the subject. One finds strong defenders (and opponents) of third degree methods, an euphesism for torture, almost routinely employed by the police. Similar divergence prevails in debates on caste, communal, gender and other forms of violence.

One’s social position and ideological orientation, rather than the fact of the violence and the plight of victims and survivors, seem to determine the stand taken on violence. Of course there is also a big segment that has either become emotionally numb due from excessive exposure to violence or is indifferent as at present it is not directly affected.

Such trends prevail in the medical profession as well. To what extent is the attitude of doctors to violence shaped by their social positions and ideological orientation? There has been very little research on doctors’ attitudes on violence and the extent to which individual biases get reflected in medical practice. Some indication on what is happening at the ground level within the profession is available from the recent reports of various local, national and international groups. These reports were prepared for specific purposes and their findings on the acts of commission and omission cannot and should not be generalised. Nevertheless, they do serve as pointers. The few examples given below on postmortems and torture and rape are purposefully selected by me in order to illustrate issues. I understand that there is always the other side to every story.

(a) Autopsy: The way autopsies are conducted, findings recorded and access to reports denied has been a bone of contention for long. There have been reports in the press about the pressure exerted on doctors by the police to give findings favorable to them. The death of Dayal Singh in police custody made the Resident Doctors’ Association of All India Institute of Medical Sciences (AIIMS) protest against such pressure. This is referred to in Amnesty International’s (AI) report titled Torture, Rape and Deaths in Police Custody4. The autopsy reports on two nuns murdered in a Bombay suburb and the role of doctors in unscientific inter F retation of its findings is also fresh in many minds5. On study of autopsy reports on victims dying in police custody and on so- called deaths during ‘encounters’ in the past few years, I found several disturbing issues which have grave implications on the unethical behavior of doctors conducting autopsies:

(1) Autopsies are generally conducted by police surgeons in police hospitals to which lay people and other doctors have no access. An independent medical audit of work being done there is unheard of. This situation is neither conducive to good science nor to ethics.

(2) A study of autopsy reports (no such study is available, hence the need for it) of victims of violence would probably show incomplete and unscientific documentation. The Supreme Court had to order, in 1989, that all postmortem examinations held at AIIMS be standardised. On making inquiries I learn that this Court order has remained inadequately implemented.

There is a crying need to adopt (with suitable modifications) the United Nations’ manual on the effective prevention and investigation of extralegal, arbitrary and summary executions.! Such routine, standardised and scientific investigation by the medical profession would go a long way in checking arbitrary killings and in upholding medical impartiality and neutrality’

(3) There is also need to make the whole process more accessible to other doctors and the public. The profession could allow a doctor appointed by the relatives of the deceased to remain present at autopsy. They should make the official report available to the family doctor and the patient’s relatives. This is an issue on which the profession can easily assert its authority.

(b) Torture and rape: There have been numerous official denials that the so- called third degree methods of interrogation or torture are practiced by our police and security personnel. The evidence accumulated so far does not support such a claim. Some of the retired police officers, reared in the old school of correct policing, have publicly criticised the ‘new methods of policing’ which condone the use of torture, illegal detention and tampering with records and in worst cases even condone execution of hard core criminals by police officers7.

AI’s report (1992) cites 13 cases of custody deaths due to torture in the period 1985- 89 in Maharashtra. A Bombay newspaper reported a study by the prestigious Karve Institute of Social Work, Pune giving the toll of custody deaths in Maharashtra in 1980- 89 as 1558. On inquiry I find that of these 155 deaths, 102 had taken place in the five year period 1985- 89 for which AI had reported only 13. On analysing the causes of the 155 custody deaths, I find that only 9.7% (15) were admitted as due to police action, 44.5% (69) were attributed to suicide or acts of the accused, 7% (11) to acts of the public, 22.6% (35) to disease and illness. 13.6% (21) were termed natural deaths and in 2.6% (4) the cause was not known or record not available. I was astonished to learn some of specific causes listed: alcohol consumption (9 cases), hanging (45), jumped in well (3), jumped under the train (2), jumped under the awtorickshaw (3), jumped under the bus (l), fell from the cot (l), skin disease (l), giddiness (l), unconsciousness (1) and so on. Given the norm that every death in custody ought to be investigated- and proper autopsy done, such causes are not only incomprehensible but also lead to suspicion about a larger proportion of deaths due to torture.

In an investigation of death in police custody in Bombay, I, along with two journalists and a lawyer, found that the young victim accused of petty theft was in the course of interrogation brought to the hospital in a serious condition with, as per hospital records, inflicted injuries on his wrists and thighs typical of torture, bloody vomiting, pain in the region around kidney etc. He was given some treatment and asked to go back to his cell by the doctor. It was also found that the doctor had taken case history and examined’his patient in the presence of the police officer who had accompanied the victim.

The doctor did not consider the presence of the police as violating the doctor- patient relationship. He insisted that he did not suspect torture as the victim never reported it to him. The victim died in his cell.

Similar findings were made by us in an investigation of a victim of gang rape wherein, inspite of the visible signs of injuries around the vagina, which could make any medical person suspect rape, the male doctor turned away the patient after treating her injuries simply because the woman could not tell him that she was raped’. The woman had reported rape to the nurse on duty but could not communicate this to the male doctor.

In another case of custodial gang rape and torture of a tribal woman by police in Gujarat, the commission of inquiry constituted by the Supreme Court found that two doctors at the government hospital were guilty of shielding the policemen and issuing a false certificate10

These examples only represent the tip of the iceberg. Doctors who come in contact with survivors and victims of violence are not always conscious accomplices in ignoring or covering up the cases. I have been given the following reasons for non- reporting and conspicuous silence by medical doctors on torture and rape:

(1) A section of doctors involved are plainly ignorant about this aspect of medical work. If it is true that it never occurs to a doctor that a policeman should not be allowed to remain present during the doctor- patient interaction, or that certain signs and symptoms should make him/ her suspicious of possible torture, it shows crass ignorance in the profession and a grave lacuna in their training.

(2) Another section is indifferent to the plight of sufferer due to their own social biases against the victims and survivors. Such indifference is also produced by social pressure to conform to the dominant belief. In cases of torture inflicted on persons labeled as terrorists, I have found doctors faithfully treating the injuries of the victims but showing great reluctance in mentioning torture due to the fear of being seen as opposed to the state’s efforts at fighting terrorism and separatism.

(3) A third section simply believes that by being in the employment of the government, the police department or the prison, they are bound by the orders of their superiors and feel that the code of their service does not allow them to ‘blow the whistle’.

The profession has failed to take the unequivocal position that when a doctor has to choose between an administrative order and professional ethics, the latter must prevail. The profession has also failed to protest when doctors are transferred as punishment for cri ticising gimmicky and unscientific measures taken by the authorities during epidemics, or when security forces harass and raid hospitals, interfering with the treatment of patients as in Kashmir11. Such lack of collective assertion of professional independence and neutrality on crucial issues has left individual doctors defenseless, cynical and by default subservient to the authorities.

(4) Another reason for doctors’ apathy to these issues is their unwillingness to ‘get involved’. Many remark, “We are doctors. We treat illness. We are not interested in torture or rape.” This is both inadequate science and poor ethics.

Treatment, rehabilitation and documentation
Recognition of the fact that the reported instances of torture represent only a tip of the iceberg emphasises the need to document the problem in a systematic manner. There is a need to put together experiences in treatment and rehabilitation of such victims, create a clearing house for such information to be disseminated among interested professionals, and thus systematise corrective medical intervention.

This would also provide precious information on the extent of problem encountered, the individuals and agencies (state, terrorists, armed groups, gangs) involved in torture, type of people affected, type of torture methods used and so on. This information in turn would sensitise the profession and make it easier for medical associations and groups to successfully campaign for rooting out conscious or unconscious complicity of doctors in torture or its cover up. Such information will also sensitise other professionals in the media, law, social work etc. to play active and meaningful roles in creating public awareness, in punishing the guilty and in rehabilitating survivors.

Code of medical ethics and torture
The code laid down by the Medical Council of India is a good but greatly neglected document. Despite debates about commercialisation and sensational revelations in the press on various allegedly unethical practices by doctors, very little has been done by the medical associations to popularise and enforce this code.

Although the principles enunciated in the code are universal and exhort doctors to refrain from participating or colluding in anything that harms the individual, there is a need to make them specific and directive, particularly in relation to the victims and survivors of violence. This could be easily done by incorporation of the international declaration on the subject in our code.

 

3rd Degree Torture by Police in India

http://sites.google.com/site/sosevoiceforjustice/3rd-degree-torture-by-police ,

 

 

 


Editorial : NARCO-ANALYSIS – RIGHT OR WRONG?


The advances in science must be used by the police to find out the
truth, to solve the mysteries of the crimes. It is the better option
for both investigation / interrogation than the classical
interrogation method involving third degree torture, where in the
accused breaks -down & blurts out the truth, usually, in most of the
cases innocents unable to bear the torture confesses to the crimes
they have not at all committed. The scientific tools of interrogation
namely Narco-analysis . Brain mapping & polygraph Tests must be made
mandatory for interrogation. The perpetrators of third degree torture
i.e. Police Military personnel must be punished severelly. Not just
on innocents, even on proven criminals police have no rights to
torture. It is grossly inhuman & illegal.


At present, there is certain bias in the usage of scientific
interrogation tools:-


1) Generally everybody is afraid of police & their corrupt practices.
Even innocent persons are frightened of false fix-ups & third degree
torture by police. This fear shows up in their heightened anxiety
level, changes in their blood pressure, respiration, heart-beat etc.,
There are chances of misinterpreting this as the “Fear of a criminal
of being caught”


2) These scientific tools are in the hands of police only. Therefore
it is biased towards the police or prosecution in a case. Forensic
science labs where these scientific interrogations are conducted are
under the control of Police department . Fundamental objective of
police is to prove their case, the prosecutions stand point rather
than finding out the truth. Sometimes, the stand points of
prosecution police are influenced by caste, political & monetary
considerations. This bias reflects in the preparation of
the “Questionnaire by the Interrogator” The interrogator if he wants
to bring out a negative image of the accused before the court, he
prepares the questionnaire such that only negative issues come out as
the answers. If the accused has got political patronage & has paid
hefty bribe to the police questionnaire is prepared such as to bring
out a positive image, to highlight innocent image of the accused.
Leaving out all other related questions, which brings out truth, a
negative image of the accused. The police are the one who decide the
fate, destiny of the accused.


3) Every human being has two personalities with in his sub –
conscious mind one personality is evil, selfish & craves for all
material pleasures. The other personality is good , humane & sociable
one. Whenever an issue comes up before a human being , whenever a
human being sees, reads or hears a subject two opinions are
formulated about it by him. One by his evil, selfish ego the other by
his good, humane self .A perfect human being, a social being is one
who controls his mind, contains the evil influences of his selfish
self and follows the guidance of his good self. This readily
expresses itself through good humane social actions. A criminal is
one who does not have control over his mind and acts according to the
evil guidance of the selfish self.


There are chances of mis-interpretation during scientific
interrogation . If you expose only evil self you will get a negative
image or else if you expose only the good self you will get a
positive image of the accused. For a balanced view, you have to see
the both evil-self & good self of the accused together with his past
& present actions.


4) At present only it is the prosecution who can use these scientific
interrogation facilities, but not the defence.
In the fake stamp paper scam during Narco Analysis , king pin Mr.
Karim Lala Telgi blurted out the truth – gave out the names of his
VVIP accomplices, Police accomplices, his business details, so far so
good.

 


Hereby I do request you to order both the union government & all
state governments :-


1) To keep the forensic science laboratories under the control of
autonomous bodies like National Human Rights Commission.


2) To make the scientific facilities of interrogation available for
both the prosecution & the defence of course, for a fee.


3) To enact legislation to subject the corrupt investigating officer,
corrupt public prosecutor, corrupt presiding judge of the case, etc.,
to scientific interrogations, by both the defence & prosecution.


4) To factor in the allowances for the natural fear for police (for
their corrupt, ruthless, devil face)


5) To create an unbiased impartial atmosphere free of fear or favour
to conduct the scientific interrogation.


6) To enact guidelines for scientific interrogation for framing
questions to bring out both good & evil self in the sub conscious to
have a balanced view of the man under question together with his past
& present actions .


7) To make it mandatory for all cases including VVIPs .

 


In various cases scams, involving VVIPs cases drag on for years.
Public money is wasted through waste of deliberations of the house (
Parliament, Legislative Assembly), Waste through constitution of
Parliamentary committees , Judicial commissions, why not all those
VVIPs accused of involvement in scams subjected to tests like Narco
analysis, poly graph, Brain finger printing etc., So that L K Advani
& Murali Manohar Joshi will tell about Babri Masjid demolition, Sonia
gandhi family will tell about Bofors, George Fernandese about
Tehelka, Raja about  telecom tenders, Lallo Prasad Yadav about fodder scam. The
scam tainted VVIP list goes on. Why not these VVIPs are subjected to
scientific interrogation with unbiased questionnaire?

 

Jai Hind. Vande Mataram.

 

Your’s sincerely ,

 

Nagaraj.M.R.

 

 

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FORENSIC SCIENCE LABORATORY   BANGALORE  INDIA

 

 

BANGALORE: Once the first choice for narcoanalysis tests, the Forensic Science Laboratory in Bangalore is now creaking under the burden of 300 pending requisitions and the absence of an expert to conduct them.

So far, Bangalore FSL has conducted over 900 narcoanalysis tests, which were mostly ordered by various courts across the country.

These have yielded some positive results and in at least 12 judgments of various high courts referred to the FSL narcoanalysis test reports.

In a recent judgment in the Ajay Kumar Pal versus State of Jharkhand on March 16, the Supreme Court held that the results of polygraph, narcoanalysis, BEOSP/ brain mapping and fingerprinting have been based as evidence to deduce the term ‘the case of rarest of rare’ to uphold the death sentence.

The services of the Bangalore FSL have been roped in to check Simi activists in Karnataka, blasts on Mumbai trains, in Hyderabad and Malegaon. From Abdul Kareem Telgi to underworld don Abu Salem and suspects in the Arushi murder case which stunned Delhi and ViniVinc Sastry are some of the high-profile cases in which narcoanalysis was done by Bangalore FSL.

However, things began going wrong during the trial of the Sister Abhaya case in Kerala. The CBI charged that the narcoanalysis report was tampered with and fingers began to be pointed at FSL officials.
FSL Assistant Director Dr S Malini, who used to conduct narcoanalysis, also ran into trouble over her date of birth in certificates as well as the procedure by which she was appointed. She was discharged the duty and the post has been vacant since then.

FSL director Dr Mohan told TOI that the FSL would get consent from the accused before conducting the tests. “We seek court permission and follow the guidelines laid down by the National Human Rights Commission also. However, we do not have experts now and therefore don’t conduct these tests,” he added.

 

 

Fake documents: Govt sacks FSL’s Dr Malini

 

Bangalore: Bowing to opposition demand in the legislative council, the state government, on Wednesday, sacked Dr S Malini, assistant director of the Forensic Science Laboratory here, on charges of submitting fake documents that furnished wrong information about her caste, and educational qualification for joining the service.

Janata Dal (Seculer) leader MC Nanaiah, who raised the issue in the council, demanded the government to immediately sack Dr Malini from service.

He stated that Malini had not only submitted false caste records, but also fakecertificates of educational qualification, including SSLC marks card.

She is also accused of tampering with documents and brain mapping reports in Sister Abhaya murder case of Kerala.

Nanaiah even drew home minister VS Acharya’s attention to a December 26, 2008 letter written by former director-general of police R Sri Kumar to the principal secretary, home department, to discharge Dr Malini from service.

Butno action was taken as Dr Malini was protected by influential persons in the ruling BJP government, Nanaiah alleged.

In his letter, the former DGP had accused Dr Malini of leaking narco test results conducted on Al Badr extremist Fahad Ali to the media. He also accused her of professional impropriety.

However, a probe by the Corps of Detectives could not establish any impropriety on the part of Dr Malini.

Earlier, questions were also raised on her recruitment through a special drive.

 

 

 

CBI To grill Dr.Malini of FSL Bangalore

 

Kochi, Friday, January 30, 2009: The CBI sleuths have informed the Kerala High Cout that they will once again interrogate Dr.S. Malini Assistant Director of the Forensic Science Laboratory (FSL), Bangalore once again to clear the air regarding the narco –analysis CDs.

Earlier, the investigating agency had alleged that narco analysis expert, Dr Malini who conducted narco test on three persons Fr Thomas Kutty, Fr Joseph Puttrukail and Sister Steffi in October 2007 had tampered with the CDs containing the video graphed procedure of the tests conducted on suspects in Sister Abhaya murder case. The agency in its submission said that she had tampered with the CDs twice on October 22, 2007 and on October 24, 2007. The agency said that a CD given by the FSL, Bangalore had three reports of which two were nowhere connected with Sister Abhaya’s murder. However the Court on August 5, 2008 had communicated to Director FSL, Bangalore to send the CDs of the entire procedure to Satheesachandran, Registrar General, Kerala High Court.

However the Court on August 5, 2008 had communicated to Director FSL, Bangalore to send the CDs of the entire procedure to Satheesachandran, Registrar General, Kerala High Court after which the Court had cleared Dr Malini once again accusing the CBI of misleading the murder case.

 

 

Manual Scavenging: Must Be Eradicated Right Away

By Ram Puniyani

Indian society is riddled with many evil practices, some of which tantamount to atrocity on one or other section of the dalit/deprived sections of society. One such atrocity is the manual scavenging; the removal of human excreta by humans, with the minimum aid of brooms, metal scarpers and buckets. This practice was officially supposed to have been banned in 1993 by the Government of India. Official lapses and apathy apart, the surveys by the activists working against this practice show that even now over 14 lakhs of scavengers are still suffering ignominy and nearly 95% of these workers are women. These scavengers are the untouchables section of dalits, who have been trapped in this occupation as a birth based work. The States have not taken the act of abolition of this practice seriously and even till 1999-2000 many a States had not notified the act. It is in this light that the social action group Safai Karmachari Andolan has given a call for abolition of this atrocity by the end of 2010.

The manual scavenging is an offshoot of the untouchability practiced in India. Many feudal societies have seen the birth based hierarchy of caste but the Indian caste system has been legitimized through Holy Scriptures to make it a religious phenomenon. Many a factors have contributed to emergence of caste; Race, class and religion. Currently the race theory does not find much favor with the serious scholars of caste. The major contributing factors have been the economic and religious. In his famous phrase Ambedkar points out that “caste is not a division of labor; it is a division of laborers”. He puts more emphasis on the ideological and religious factors. In his analysis these factors are interwoven as civilizational factors which influenced and resulted in social changes leading to formation of caste system.

The evolution of caste society was a slow process. Its continuance was secured by making it hereditary. The primitive taboo on eating together and intermarriage became caste law, which in turn led to marriage limits and elaborate rules of endogamy and exogamy. The continuance of caste system depended on vast network of sub-castes, which were connected with occupations. This sub-caste – jati – came to have more relevance and became the basis of functioning of Hindu society. As caste became hereditary with close connection between occupation and sub-caste, it resulted in an automatic check on individual moving up in the hierarchy of castes

Untouchablity is the outcome of this caste system and manual scavenging is the subhuman expression of the same, that being amongst the worst of atrocities perpetrated by the upper caste on the low castes. This is the key concept inherent in purity-pollution, and rebirth theories which were used to enslave the low caste and keep them tied to the subhuman occupation. Khalid Akhtar (Hardnews Media, March 2008) points out that the earliest references to it are found in Narada Samhita and Vajasaneyi Samhita. In Narada Samhita one of the 15 duties listed for untouchables, one is the removal of human excreta. In Vajasaneyi Samhita, Chandalas are referred to as slaves engaged in the disposal of human excreta. Even other dalits look down upon them and all the avenue of social interaction in any form were denied to them.

Excavations at Lotha in Gujarat show that Harappan civilization did have water based sanitation system. The toilets were connected by drains and had manholes and chambers. With the decline of Harappan civilization this technology went into oblivion.

The system of manual scavenging continued in medieval times as well. While the Muslim kings did introduce different techniques at places. As such the communal politics, as is its wont, is trying to propagate that since the Muslims used Burqua, women could not go out to jungles, they introduced manual scavenging. This is another way of putting the blame of internal problems to external source. This is far from truth. Observation and research into the Mughal forts’ sanitation system shows that they had small outlets in the bathing rooms of Mughal forts which were used as toilets. The waste from these toilets was carried by gravitational force to the ramparts with the help of water. This technique has been seen in the Red Fort in Delhi, in the palaces of Rajasthan, in Hampi, Karnataka and in Thiruvananthapuram, Kerala.

The British did claim that they have come here, carrying the “White Man’s Burden” of civilizing the East, but as far as retrograde social practices were concerned they were unconcerned about those. In the case of manual scavenging they put their seal of approval on this by systematizing it and creating the posts of scavengers in army, railways, municipalities and big towns. Barring few places they did not put the sewer lines in most of the places, as they observed that already the system of scavenging is in place. Due to industrial changes, end of craftsmanship and pauperization of a section of society, some of them forced to join in this work.

Ambedkars’ rebellion against caste and his prescription on ‘Annihilation of caste’ and Mahatma Gandhi’s efforts to eradicate untouchabilty, experiments with new designs of toilets, had a minimal effect on the total social situation, as the social transformation has been painfully slow. After partition the untouchables from Pakistan were not permitted to come to India and Indian Government did not try much for the safe passage of this group to India. And here the situations continued as it has been due to which the life was a total humiliation for this section of society persisted. During last many decades the pressure of the social movements is forcing the State authorities to abolish this practice and rehabilitate the scavengers. As usual the State response has been half baked and there is a lack of effectivity in the same. The step of the social movements to do all, advocacy, campaign and other pressures, to ensure that this practice is put to
rest is very significant.

One knows that the popular opinion and efforts of all sensitive people to end this are needed at this point of time to remove this blot on Indian society, irrespective of its sanction by the Holy Scriptures and traditional practices. Enough is enough, this atrocity on a section of our society has to be stopped forthwith, they need to be rahabilitated to the life of dignity, come what may.

 

 

 

Narcoanalysis and some hard facts

SRIRAM LAKSHMAN

Narcoanalysis is being mainstreamed into investigations and court hearings in India. This raises grave scientific and ethical questions.

BY SPECIAL ARRANGEMENT

Narcoanalysis is conducted in a hospital in the presence of a physician and an anaesthetist who administers the barbiturate. A clinical psychologist questions the suspect. Here, a suspect in a 2004 murder case in Bangalore is being “narcoanalysed”. The court acquitted her as narcoanalysis could be used only for investigation and not to convict suspects.

NARCOANALYSIS has become an increasingly, perhaps alarmingly, common term in India. It refers to the process of psychotherapy conducted on a subject by inducing a sleep-like state with the aid of barbiturates or other drugs. In a spate of high-profile cases, such as those of the Nithari killers and the Mumbai train blasts, suspects have been whisked away to undergo an interview, drugged with the barbiturate sodium pentothal.

This practice has also garnered support from certain State governments as well as the judiciary. Politicians have fallen into the habit of hurling the term `narcoanalysis’ at each other. In 2006, Karnataka Congress leader H. Vishwanath suggested that Chief Minister H.D. Kumaraswamy and his colleagues undergo narcoanalysis in the Chenamma Trust bribery case. The Home Ministry’s forensic science directorate has yet to withdraw a controversial manual on best practices in narcoanalysis in which it states that facilities for narcoanalysis need to be expanded. There is also talk of the National Institute of Mental Health and Neurosciences (NIMHANS) in Bangalore working with the Gandhinagar Forensic Science Laboratory (FSL) to train personnel in this technique. It is not surprising then that there are about 300 people in the narcoanalysis queue at the FSL, Bangalore, alone.

It would appear that the narcoanalysis beast has acquired a life of its own. It is increasingly knocking at the doors of courts and finding ready acceptance as a device to get at the truth during police investigations, though its scientific basis and value are under strong challenge. It is for this reason that the scientific, legal, and evidentiary issues relevant to the narcoanalysis debate need to be discussed critically.

Narcoanalysis is rarely used for therapeutic purposes today. The reliability of the practice has been questioned by leading psychiatric and forensic experts. Dr. P. Chandra Sekharan, the highly regarded former Director of the Forensic Sciences Department of Tamil Nadu, has characterised the practice as an unscientific, third-degree method of investigation. Nevertheless, sections of the police in India and those connected with investigative agencies consider it the golden ticket to solving difficult cases.

Far from being novel, truth serums have been in use since the early part of the 20th century. The use of the drug scopolamine for criminal narcoanalysis was first reported in 1922. Barbiturates, which have been in use since the beginning of the last century, were being used in psychotherapy for narcoanalysis by 1930 along with other methods of therapy. During and after the War years, United States armed forces and intelligence agencies continued to experiment with truth drugs. The Central Intelligence Agency (CIA) has admitted to using these as part of its interrogation tactics, and a declassified CIA interrogation manual does concede that while truth drugs can be useful in overcoming resistance not dissolved by other methods, the actual content of what comes out during the interrogation can be “psychotic manifestations… hallucinations, illusions, delusions or disorientation”.

At the 1977 U.S. Senate hearings on its secret mind-control project, the CIA acknowledged that “no such magic brew as the popular notion of truth serum exists”.

It also said that even under the best conditions, the barbiturates would elicit an output contaminated by deception, fantasy, garbled speech, and so on. Studies have shown that persons who make truthful confessions are those who were likely to confess had interrogators persisted in using regular methods, and that persons who lie can continue to manifest a lie even under the influence of a so-called truth serum. InThe Rape of the Mind, author and physician Joost Merloo says that the investigator can also induce and communicate his own thoughts and feelings to the suspect.

Scientific literature indicates that if narcoanalysis has any extra-therapeutic uses, it may be in making a suspect feel that he has revealed more than he actually did. With repeated questioning, it may be possible to reduce ambiguities although these cannot be eliminated.

Ban in the U.S.

T.L. PRABHAKAR

Abdul Karim Telgi, the kingpin of the stamp paper scam, being brought to a Bangalore court in 2003. Telgi underwent narcoanalysis in Bangalore.

In 1989, the New Jersey Supreme Court (State v. Pitts) prohibited the use of sodium amytal narcoanalysis because the results of the interview were not considered scientifically reliable, although there was some use to the interviews (“Educing Information” by National Defence Intelligence College). The court opined that subjects are susceptible to filling in gaps in stories with fabricated detail (hyperamnesia), or believing in false events (memory hardening), and hypnotic recall, where thoughts of non-existent events become embedded in the memory. (“Gaps to fill”, Frontline; October 20, 2006).

Scientific scepticism and the absence of controlled studies have not deterred Indian investigating agencies from running to the FSL in Gandhinagar or, more likely, Bangalore. FSL Bangalore is the de facto hub for narcoanalysis for various police departments across the country. Narcoanalysis is done using sodium pentothal, in conjunction with three other tests – psychological profiling, polygraph (`lie detector’) tests, and brain mapping. Polygraph tests, which one can learn to `pass’ or `fail’, are used for screening and confirmation purposes only. Brain mapping, a premature if promising technique not entirely free from controversy itself, indicates whether a subject’s brain stores experiential knowledge about a certain object. Narcoanalysis is used when investigators need oral elicitations from a suspect. For instance, if brain mapping indicates that the suspect stores information about a blue getaway car allegedly used in the crime, then narcoanalysis, according to the FSL, Bangalore, is used to provide information such as the number of the car, where it is parked, and so on.

Narcoanalysis is usually conducted at Victoria Hospital, Bangalore. In addition to FSL psychologist Dr. S. Malini, who questions the suspect, there is an anaesthetist who administers the drugs and a physician who certifies the subject’s fitness for the test. The psychologist also gathers and collates information such as first information reports (FIRs), autopsy reports, and biographical data when preparing for the test. The entire procedure is video-recorded and the subject usually signs a consent form.

Dr. B.M. Mohan, Director of FSL, Bangalore, attributes a 96 to 97 per cent total success rate to narcoanalysis. Included in the definition of total success rate is the discovery of information that either triggers a relevant section of the law or may be cross-verified with other tests (such as brain mapping). Assessments are aided by questionnaires handed out to investigating officers. For instance, if the suspect speaks about a gun hidden in a coconut grove, and this leads the police to recovering the weapon (which is admissible as evidence), it would count towards the success rate. Additionally, if someone mentions a blue car and this is recognised as being stored in the suspect’s brain using brain mapping, that too would count towards the total success rate.

G.P. SAMPATH KUMAR

Abu Salem (right), one of the accused in the 1993 Mumbai serial bomb blasts case and a close associate of the underworld don Dawood Ibrahim, after a narcoanalysis test at Bowring Hospital, Bangalore, in December 2005.

The abundance of scientific literature and forensic and psychiatric opinions on narcoanalysis does not shake Dr. Mohan’s claims about the reliability of the practice because he says he has the data from some 300 cases to prove his contentions. Findings that point to the unreliability of narcoanalysis, according to Dr. Mohan, are usually based on studies of scopolamine and sodium amytal and are not applicable to sodium pentothal, which is used by the Indian laboratories. “Many people say there are fantasies in the narco. I totally disagree because they do not know the pharmacokinetics of pentothal sodium,” he says, adding that during narcoanalysis the tendency is to sleep if not questioned, rather than hallucinating or fantasising.

There are two problems with this argument. Using sodium pentothal is not a new advance in narcoanalysis. Sodium pentothal was used for several decades in psychotherapy, according to Dr. C.R. Chandrashekhar, Deputy Medical Superintendent and Professor of Psychiatry for almost 30 years at NIMHANS. “Thiopental sodium will not make him [the patient] tell everything that is inside him. There is no guarantee that he will tell the truth,” he says. The psychological fraternity around the world has consequently stopped using pentothal in all but the rarest cases, and if it is used, it is always with the consent of the patient.

Dr. Mohan’s contention that it is difficult to manifest fantasies in narcoanalysis is also open to debate. False memory is an extremely well-researched area, according to Dr. Chittaranjan Andrade, a Professor of Psychopharmacology at NIMHANS, with at least 25 years of experience. “Even a person who is fully conscious can firmly believe in something that has not happened. There is a lot of research done on this subject,” says Dr. Andrade.

Psychiatrists hold that some 50 per cent of all individuals are suggestible even while fully conscious, meaning they can be made to believe events that never actually happened. Therefore, while patients under narcoanalysis may find it difficult to lie consciously depending on the depth of the narcoanalysis, they can certainly say things that are on the surface of their minds. What a person says in a sedated state depends on a lot of factors, including their personality, how awake they are, how strongly they want to deny certain facts, and so on. “Under pentothal narcoanalysis, when inhibitions are lowered, a lot of the unconscious mind of the patient may come to the fore. The patient may say things that he wished were true and not that were necessarily true,” says Dr. Andrade.

Explaining the case of a suspect who is repeatedly accused of a crime during regular interrogation, Dr. Andrade says, “The same thing goes on during the narcoanalysis. He [the suspect] remembers `you’ve done this, you’ve done this’. He says, `I have done that.'”

When science has outpaced the development of law or at` least the layperson’s understanding of it, there are unavoidable complexities regarding what can be admitted as evidence in court. In the U.S. , where science often interfaces uncomfortably with the law, the Supreme Court offered four criteria, part of the Daubert Standard (1993), by which to judge the credibility of a scientific principle held by a minority of practitioners: hypothesis testing; peer review and publication; knowledge of error rates; and acceptability in the general scientific community.

We must give narcoanalysis its due and grant that it has provided valuable leads to the police in some instances. However, one swallow, or even many swallows in this case, does not a summer make. It is logically consistent for even a pseudo-science to produce reliable outcomes in particular cases. The overall reliability and science behind the practice can only be determined after statistical analysis of a sufficiently large sample.

Legal Aspects

The irony that we face in India is that the science has not leapfrogged the courts by any stretch of imagination. The Bangalore research results and methods have been neither peer-reviewed nor published. Regarding publication of the data, Mohan says he will go public with the FSL data in three to four months (from March 2007), and is willing to debate its implications at international forums. “We have secured convictions, we have secured cross-verification and we have stood through the challenges of the defence,” he says. Asked how he could go against scientific practice, by calling data scientific when they have yet to be proved so, Dr. Mohan says, “Otherwise with what courage do you go to the court?” He adds that given the nature of narcoanalysis, it is not possible to get volunteers to facilitate controlled studies. Studies based on some 300-odd criminal investigations are unlikely to consist of controlled experimental data, and the feedback that goes into defining the success of the analysis is in part provided by police questionnaires. Here lurks a conflict of interest.



Suspected terrorist Imran alias Bilal being taken to Bowring Hospital, Bangalore, for a second narcoanalysis test, in January 2007.

There are other significant legal aspects to the narcoanalysis debate. In a 2006 judgment (Dinesh Dalmia v. State), the Madras High Court held that subjecting an accused to narcoanalysis is not tantamount to testimony by compulsion. The court said 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.” There are two fallacies in this reasoning. First, if narcoanalysis is all that it is made out to be by the Bangalore FSL, the accused will involuntarily answer questions posed to him during the interview. The second fallacy is that it is incorrect to say that the accused is merely taken to the laboratory against his will. He is then injected with substances. The breaking of one’s silence at the time it is broken is always technically `voluntary’. Similarly, it can be argued that after being subject to electric shocks, a subject `quite voluntarily’ divulges information. But the act or threat of violence is where the element of coercion is housed. In narcoanalysis, the drug contained in the syringe is the element of compulsion. The rest is technically voluntary.

In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: “No person accused of any offence shall be compelled to be a witness against himself.” Statements made under narcoanalysis are not admissible in evidence. However, recoveries resulting from such drugged interviews are admissible as corroborative evidence. This is, arguably, a roundabout way of subverting the right to silence – acquiring the information on where to find the weapon from the subject when, in his right senses, he would not turn witness against himself.

Arguments have been made that narcoanalysis constitutes mental torture. It works by inhibiting the nervous system and thus lowering the subject’s inhibitions. It is not difficult to interpret this as a physical violation of an individual’s mind-space.

The Bombay train blasts case, the Nithari killers case, and the “beer killer” case in Mumbai (2007) are just a few examples of recent cases that involved narcoanalysis. The sources of demand for this practice are the State police departments. The decision to conduct narcoanalysis is usually made by the Superintendent of Police or the Deputy Inspector-General handling a case. A high-ranking official in the Karnataka Police told Frontline that the Police Departments in India had poor skills when it came to collection, collation and presentation of evidence before the courts. “Investigative skills at the grassroots are dwindling in India,” he said. Consequently, when there is enormous pressure on a police department to solve a case, sending suspects to narcoanalysis not only buys time but also gives the impression that something concrete has been done about the case.

This is likely what happened in the Nithari case, where the chief accused, Moninder Singh Pandher, and his domestic help, Surender Koli, were sent to Gandhinagar for narcoanalysis in January 2007, according to a reliable source. Often these decisions are backed up by the genuine belief in the “Bangalore Phenomenon”. Bangalore, perceived to be the science hub of India, is mistakenly attributed with being able to use scientific tools to solve any and all investigations.

There are, however, sections of those connected to investigating agencies who feel there is a legitimate case for narcoanalysis. These cases would include the Jessica Lal and Best Bakery investigations where witnesses turned hostile or rape cases where issues of consent are being debated, according to Dr. M.S. Rao, Director and Chief Forensic Scientist at the Directorate of Forensic Sciences, the Home Ministry’s forensic science unit.



Surender Koli, main accused in the Nithari case, coming out from a forensic science laboratory in Gandhinagar in January 2007 after narcoanalysis.

With the Bombay High Court ruling permitting narcoanalysis, its use should be encouraged in grave offences, writes M. Sivananda Reddy, Superindent of Police for Cyber Crimes at Criminal Investigation Department (CID), Andhra Pradesh. Though he cautions against the abuse of narcoanalysis after extensively acknowledging its many shortcomings, Reddy says that using drugs in investigation is of particular use when the investigating officer is hard pressed for time or working to disrupt imminent plots including terrorist acts.

If this line of argumentation sounds familiar, it is probably because it is as old as controversial investigative methods themselves. The argument has also cropped up frequently in the media after the 9/11 attacks in Alan Dershowitz’s ticking-bomb terrorist case, where the Harvard Law School professor argues for legitimising torture in select cases, such as when there is a hypothetical bomb waiting to explode. There are many arguments against the selective use of normally banned cruel practices. Authorities are likely to abuse the power to decide which situations will warrant such exceptions, even when such extraordinary situations are explicitly laid out by law. It will be difficult to find a fool-proof way to determine which suspect is concealing information about a hypothetical bomb. It will often be impossible to know if there is a bomb ticking in the first place. These questions of discretion aside, when a country claims to be committed to human rights and against torture, one may ask if there can ever be a situation that warrants a deviation from its commitment to such principles.

Proponents of narcoanalysis have also argued that the U.S. has secretly resumed truth serum interviews. After 9/11, a Department of Justice Memorandum to the White House discussed options of using truth serums. Additionally, Gerald Posner’s book, Why America Slept, alleges that the U.S. covertly allows its intelligence agencies to conduct sodium pentothal interviews. Nevertheless, these instances are behind the eyes of the law and the public, unlike the Indian case. American interrogation techniques are far from being the gold standard, having earned the ire of the international community and large sections of the U.S. population and legislature.

While the expert studies and court opinions available internationally have granted that there may be some use in narcoanalysis, the overwhelming evidence is that narcoanalysis is by no means a reliable science. In the face of a near-consensus internationally, one or two Indian forensic laboratories claim to have new evidence and studies claiming remarkable success rates for the process. It is now incumbent on them to prove their claim that narcoanalysis is backed by sound science. In the absence of proof, narcoanalysis must necessarily be suspended, especially given its ethical and human rights implications.

State governments need to work with the central authorities to enhance the investigative capabilities of their police departments. The Indian criminal justice system has an alarmingly low conviction rate and the situation needs to be rectified with emphasis on real science and state-of-the-art technology. According to one law enforcement official, this starts with training the investigating officer at the constabulary level in basic investigative sciences. Usually it is the investigating officer who takes charge of an investigation, asking the forensic scientist to accompany him to the crime site to collect certain evidence and provide expert opinion on certain aspects of the crime, which the forensic scientist has the expertise to do. Instead, the police now hand over one of the most crucial parts of the investigation to a clinical psychologist conducting narcoanalysis. Interrogation is an art as well as a science. It takes enormous amounts of training and patience – skills evidently lacking in much of the police force and increasingly outsourced to Bangalore.

The Central government must make a clear policy stand on narcoanalysis – because what is at stake is India’s commitment to individual freedoms and a clean criminal justice system. In a positive development, the Supreme Court, in November 2006, ordered a stay on a metropolitan judge’s order to conduct narcoanalysis on K. Venkateswara Rao, in the Krushi Cooperative Urban Bank case. Rao refused to sign a consent form, and to its credit, the FSL, Gandhinagar, refused to conduct the test without the signed consent form. The Supreme Court decision on the case is awaited and will have a significant bearing on the use of narcoanalysis in India.

 

Supreme Court makes narco, lie detector, brain mapping tests illegal

 

 

New Delhi: In a major setback to investigating agencies, the Supreme Court (SC) on Wednesday ruled compulsory brain mapping, narco-analysis and lie detector tests unconstitutional as they violate individual rights.

“We hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty,” a bench of chief justice KG Balakrishnan, and justices RV Raveendran and JM Panchal said.

Information gained through the tests is already inadmissible in the country’s courts, but the SC ruling makes it clear that the police cannot use the tests or investigate any leads arising thereof unless suspects volunteer.

“Compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms,” the bench said in a 251-page judgment.
The judges said relying on reports gathered from these techniques conflicts with the “right to fair trial”.

They held that compelling public interest cannot justify the dilution of constitutional rights such as the “right against self-incrimination”.

They said that as guardians of fundamental rights, they would be “failing in our duty” if any citizen is permitted to be forcibly subjected to the questionable tests.

The bench described such tests as a form of third degree torture, which could not be permitted to replace existing police behaviour. It discarded the pleas of the states and the Centre that the tests were justified means to tackle terrorism, a crime where investigating agencies are not armed with any tools to find out “ticking bombs”.

Disposing of petitions filed by accused in Maharashtra, Karnataka and Andhra Pradesh, the bench said the tests can be administered to a person only with consent and even then National Human Rights Commission guidelines must be adhered to. The person needs to be assisted by a lawyer, his consent needs to be recorded before a magistrate, and he needs to be told about the implications of his consent and the fact that the information thus collected would not be used against him as evidence in court. But information or material collected with the help of a (voluntary) test can be admitted in court under section 27 of the Evidence Act.

The bench refrained from categorically suggesting that the government could enact a law through Parliament to make the tests valid in compelling public interest and exceptional circumstances. But it said the argument merits consideration and it is “the task of legislature to arrive at a pragmatic balance between the often competing interests of personal liberty and public safety”.

Being the constitutional court, the SC can only “seek to preserve the balance between these competing interests and their interpretation’’, the bench said.
The bench expressed the SC’s dilemma in justifying the “use of torture or other improper means for eliciting information which could help in saving the lives of ordinary citizens”, but termed the government’s defence of making such means applicable to terror-related cases as “utilitarian considerations”.

The government reacted carefully to the judgment, with a senior attorney welcoming the verdict but saying “something extra is needed to deal with terrorists and militants”.

 

Polygraph

From Wikipedia, the free encyclopedia

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This article is about the forensic instrument. For the automatic signing instrument, see Autopen. For the dual pen device that produces a simultaneous copy of an original while it is written in cursive writing, seePolygraph (duplicating device).

“Lie detector test” redirects here. For other uses, see Lie detector test (disambiguation).

Polygraph results are sometimes recorded on a chart recorder

polygraph (popularly referred to as a lie detector) is an instrument that measures and records several physiological indices such as blood pressurepulserespiration, breathing rhythms/ratios, and skin conductivity while the subject is asked and answers a series of questions, in the belief that deceptive answers will produce physiological responses that can be differentiated from those associated with non-deceptive answers.

Polygraphy is widely rejected as pseudoscience by the scientific community.[1] Nonetheless, polygraphs are in some countries used as an interrogation tool with criminal suspects or candidates for sensitive public or private sector employment. US federal government agencies such as the FBI and the CIA and many police departments such as the LAPD use polygraph examinations to interrogate suspects and screen new employees. Within the US federal government, a polygraph examination is also referred to as a psychophysiological detection of deception (PDD) examination. [edit] History

The idea that lying produces physical side-effects has long been claimed. In West Africa persons suspected of a crime were made to pass a bird‘s egg to one another.[citation needed] If a person broke the egg, then he or she was considered guilty, based on the idea that their nervousness was to blame. In ancient China the suspect held a handful of rice in his or her mouth during a prosecutor’s speech.[citation needed] Becausesalivation was believed to cease at times of emotional anxiety, the person was considered guilty if by the end of that speech the rice was dry.

Early devices for lie detection include an 1885 invention of Cesare Lombroso used to measure changes in blood pressure for police cases, a 1904 device by Vittorio Benussi used to measure breathing, and an abandoned project by American William Marston which used blood pressure and galvanic skin response to examine German prisoners of war (POWs).[2]

Sir James Mackenzie of Scone, Scotland invented an early lie detector or polygraph in the 1900s. MacKenzie’s polygraph “could be used to monitor the cardiovascular responses of his patients by taking theirpulse and blood pressure.[3] He had developed an early version of his device in the 1890s, but had Sebastian Shaw, a Lancashire watchmaker, improve it further. “This instrument used a clockwork mechanism for the paper-rolling and time-marker movements and it produced ink recordings of physiological functions that were easier to acquire and to interpret. Interestingly, it has been written that the modern polygraph is really a modification of Dr. Mackenzie’s clinical ink polygraph.” [4]

A device recording both blood pressure and galvanic skin response was invented in 1911 by Dr. Reginald A. Larson of the University of California and first applied in law enforcement work by the Berkeley Police Department under its nationally renowned police chief August Vollmer. Further work on this device was done by Leonarde Keeler.[5]

Several devices similar to Keeler’s polygraph version included the Berkeley Psychograph, a blood pressure-pulse-respiration recorder developed by C. D. Lee in 1936[6] and the Darrow Behavior Research Photopolygraph, which was developed and intended solely for behavior research experiments.[6][7]

Marston wrote a second paper on the concept in 1915, when finishing his undergraduate studies. He entered Harvard Law School and graduated in 1918, re-publishing his earlier work in 1917.[8] According to their son, Marston’s wife, Elizabeth Holloway Marston, was also involved in the development of the systolic blood pressure test: “According to Marston’s son, it was his mother Elizabeth, Marston’s wife, who suggested to him that ‘When she got mad or excited, her blood pressure seemed to climb’ (Lamb, 2001). Although Elizabeth is not listed as Marston’s collaborator in his early work, Lamb, Matte (1996), and others refer directly and indirectly to Elizabeth’s work on her husband’s deception research. She also appears in a picture taken in his polygraph laboratory in the 1920s (reproduced in Marston, 1938).”[9][10] The comic book character, Wonder Woman, by William Marston (and influenced by Elizabeth Marston[11][12]) carries a magic lasso which was modelled upon the pneumograph (breathing monitor) test.[11][13]

Marston was the self-proclaimed “father of the polygraph” despite his predecessor’s contributions. Marston remained the device’s primary advocate, lobbying for its use in the courts. In 1938 he published a book,The Lie Detector Test, wherein he documented the theory and use of the device.[14] In 1938 he appeared in advertising by the Gillette company claiming that the polygraph showed Gillette razors were better than the competition.[15][16][17]

A device which recorded muscular activity accompanying changes in blood pressure was developed in 1945 by John E. Reid, who claimed that greater accuracy could be obtained by making these recordings simultaneously with standard blood pressure-pulse-respiration recordings.[6][18]

[edit] Testing procedure

Globe icon. The examples and perspective in this section may not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page(April 2010)

Today, polygraph examiners use two types of instrumentation: analog and computerized. In the United States, most examiners now use computerized instrumentation.

A typical polygraph test starts with a pre-test interview to gain some preliminary information which will later be used for “control questions”, or CQ. Then the tester will explain how the polygraph is supposed to work, emphasizing that it can detect lies and that it is important to answer truthfully. Then a “stim test” is often conducted: the subject is asked to deliberately lie and then the tester reports that he was able to detect this lie. Then the actual test starts. Some of the questions asked are “irrelevant” or IR (“Is your name Chris Drozdz?”), others are “probable-lie” control questions that most people will lie about (“Have you ever stolen money?”) and the remainder are the “relevant questions”, or RQ, that the tester is really interested in. The different types of questions alternate. The test is passed if the physiological responses during the probable-lie control questions (CQ) are larger than those during the relevant questions (RQ). If this is not the case, the tester attempts to elicit admissions during a post-test interview, for example, “Your situation will only get worse if we don’t clear this up”.[19][20]

Criticisms have been given regarding the validity of the administration of the Comparative Questions test (CQT). The CQT may be vulnerable to being conducted in an interrogation-like fashion. This kind of interrogation style would elicit a nervous response from innocent and guilty suspects alike. There are several other ways of administrating the questions.

An alternative is the Guilty Knowledge test (GKT), or the Concealed Information Test (CIT). The administration of this test is given to prevent potential errors that may arise from the questioning style. The test is usually conducted by a tester with no knowledge of the crime or circumstances in question. The administrator tests the participant on their knowledge of the crime that would not be known to an innocent person. For example: “Was the crime committed with a .45 or a 9 mm?” The questions are in multiple choice and the participant is rated on how they react to the correct answer. If they react strongly to the guilty information, then proponents of the test believe that it is likely that they know facts relevant to the case. This administration is considered more valid by supporters of the test because it contains many safeguards to avoid the risk of the administrator influencing the results.[21]

[edit] Validity

Polygraphy has little credibility among scientists.[22][23] Despite claims of 90-95% validity by polygraph advocates, and 95-100% by businesses providing polygraph services[24], critics maintain that rather than a “test”, the method amounts to an inherently unstandardizable interrogation technique whose accuracy cannot be established. A 1997 survey of 421 psychologists estimated the test’s average accuracy at about 61%, a little better than chance.[25] Critics also argue that even given high estimates of the polygraph’s accuracy a significant number of subjects (e.g. 10% given a 90% accuracy) will appear to be lying, and would unfairly suffer the consequences of “failing” the polygraph. In the 1998 Supreme Court case, United States v. Scheffer, the majority stated that “There is simply no consensus that polygraph evidence is reliable” and “Unlike other expert witnesses who testify about factual matters outside the jurors’ knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion…”[26] Also, in 2005 the 11th Circuit Court of Appeals stated that “polygraphy did not enjoy general acceptance from the scientific community”.[27] Charles Honts, a psychology professor at Boise State University, states that polygraph interrogations give a high rate of false positives on innocent people.[28] In 2001 William G. Iacono, Distinguished McKnight University Professor of Psychology and Neuroscience and Director, Clinical Science and Psychopathology Research Training Program at the University of Minnesota, published a paper titled “Forensic “Lie Detection”: Procedures Without Scientific Basis” in the peer reviewed Journal of Forensic Psychology Practice. He concluded that

Although the CQT [Control Question Test] may be useful as an investigative aid and tool to induce confessions, it does not pass muster as a scientifically credible test. CQT theory is based on naive, implausible assumptions indicating (a) that it is biased against innocent individuals and (b) that it can be beaten simply by artificially augmenting responses to control questions. Although it is not possible to adequately assess the error rate of the CQT, both of these conclusions are supported by published research findings in the best social science journals (Honts et al., 1994; Horvath, 1977; Kleinmuntz & Szucko, 1984; Patrick & Iacono, 1991). Although defense attorneys often attempt to have the results of friendly CQTs admitted as evidence in court, there is no evidence supporting their validity and ample reason to doubt it. Members of scientific organizations who have the requisite background to evaluate the CQT are overwhelmingly skeptical of the claims made by polygraph proponents. [29]

Summarizing the consensus in psychological research, professor David W. Martin, PhD, from North Carolina State University, states that people have tried to use the polygraph for measuring human emotions, but there is simply no royal road to (measuring) human emotions.[30] Therefore, since one cannot reliably measure human emotions (especially when one has an interest in hiding his/her emotions), the idea of valid detection of truth or falsehood through measuring respiratory rate, blood volume, pulse rate and galvanic skin response is a mere pretense. Since psychologists cannot ascertain what emotions one has,[31]polygraph professionals are not able to do that either.

Polygraphy has also been faulted for failing to trap known spies such as double-agent Aldrich Ames, who passed two polygraph tests while spying for the Soviet Union.[28][32] Other spies who passed the polygraph include Karl Koecher,[33] Ana Belen Montes,[34] and Leandro Aragoncillo.[35] However, CIA spy Harold James Nicholson failed his polygraph examinations, which aroused suspicions that led to his eventual arrest.[36] Polygraph examination and background checks failed to detect Nada Nadim Prouty, who was not a spy but was convicted for improperly obtaining US citizenship and using it to obtain a restricted position at the FBI.[37]

The polygraph also failed to catch Gary Ridgway, the “Green River Killer”. Ridgway passed a polygraph in 1984 and confessed almost 20 years later when confronted with DNA evidence.[38]

Conversely, innocent people have been known to fail polygraph tests. In Wichita, Kansas in 1986, after failing two polygraph tests (one police administered, the other given by an expert that he had hired), Bill Wegerle had to live under a cloud of suspicion of murdering his wife Vicki Wegerle, even though he was neither arrested nor convicted of her death. In March 2004, a letter was sent to The Wichita Eagle reporter Hurst Laviana that contained Vicki’s drivers license and what first appeared to be crime scene photographs of her body. The photos had actually been taken by her true murderer, BTK,[39] the serial killer that had plagued the people of Wichita since 1974 and had recently resurfaced in February 2004 after an apparent 25 year period of dormancy (he had actually killed three women between 1985 and 1991, including Wegerle). That effectively cleared Bill Wegerle of the murder of his wife. In 2005 conclusive DNA evidence including DNA retrieved from under the fingernails of Vicki Wegerle, demonstrated that the BTK Killer was Dennis Rader[40]

Prolonged polygraph examinations are sometimes used as a tool by which confessions are extracted from a defendant, as in the case of Richard Miller, who was persuaded to confess largely by polygraph results combined with appeals from a religious leader.[41]

Law enforcement agencies and intelligence agencies in the United States are by far the biggest users of polygraph technology. In the United States alone all federal law enforcement agencies either employ their own polygraph examiners or use the services of examiners employed in other agencies.[42] This is despite persistent claims of unreliability. For example in 1978 Richard Helms, the 8th Director of Central Intelligence, stated that:
“We discovered there were some Eastern Europeans who could defeat the polygraph at any time. Americans are not very good at it, because we are raised to tell the truth and when we lie it is easy to tell are lying. But we find a lot of Europeans and Asiatics can handle that polygraph without a blip, and you know they are lying and you have evidence that they are lying.”[43]

[edit] Countermeasures

Several countermeasures designed to pass polygraph tests have been described. Asked how he passed the polygraph test, Ames explained that he sought advice from his Soviet handler and received the simple instruction to: “Get a good night’s sleep, and rest, and go into the test rested and relaxed. Be nice to the polygraph examiner, develop a rapport, and be cooperative and try to maintain your calm.”[44]

Other suggestions for countermeasures include for the subject to mentally record the control and relevant questions as the examiner reviews them prior to commencing the interrogation. Once the interrogation begins, the subject is then supposed to carefully control their breathing during the relevant questions, and to try to artificially increase their heart rate during the control questions, such as by thinking of something scary or exciting or by pricking themselves with a pointed object concealed somewhere on their body. In this way the results will not show a significant reaction to any of the relevant questions.[45][46]

[edit] 2003 National Academy of Sciences report

The accuracy of the polygraph has been contested almost since the introduction of the device. In 2003, the National Academy of Sciences (NAS) issued a report entitled “The Polygraph and Lie Detection”. The NAS found that the majority of polygraph research was “Unreliable, Unscientific and Biased”, concluding that 57 of the approximately 80 research studies that the APA relies on to come to their conclusions were significantly flawed. These studies concluded that a polygraph test regarding a specific incident can discern the truth at “a level greater than chance, yet short of perfection”though NAS did restrict almost all of its conclusions to polygraph usage for “security screening” purposes. It did not focus on forensic applications, polygraph testing commonly plays a role in helping to resolve criminal investigations.. The report also concluded that this level of accuracy was overstated and the levels of accuracy shown in these studies “are almost certainly higher than actual polygraph accuracy of specific-incident testing in the field.”[47]

When polygraphs are used as a screening tool (in national security matters and for law enforcement agencies for example) the level of accuracy drops to such a level that “Its accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies.” In fact, the NAS extrapolated that if the test were sensitive enough to detect 80% of spies (a level of accuracy which it did not assume), this would hardly be sufficient anyway. Let us take for example a hypothetical polygraph screening of a body of 10,000 employees among which are 10 spies. With an 80% success rate, the polygraph test would show that 8 spies and 1,992 non-spies fail the test. Thus, roughly 99.6 percent of positives (those failing the test) would be falsepositives. The NAS concluded that the polygraph “…may have some utility”[47] but that there is “little basis for the expectation that a polygraph test could have extremely high accuracy.”[48]

The NAS conclusions paralleled those of the earlier United States Congress Office of Technology Assessment report “Scientific Validity of Polygraph Testing: A Research Review and Evaluation”.[49]

[edit] Admissibility of polygraphs in court

[edit] United States

In 2007[update], polygraph testimony was admitted by stipulation in 19 states, and was subject to the discretion of the trial judge in federal court. The use of polygraph in court testimony remains controversial, although it is used extensively in post-conviction supervision, particularly of sex offenders. In Daubert v. Merrell Dow Pharmaceuticals (1993),[50] the old Frye standard was lifted and all forensic evidence, including polygraph, had to meet the new Daubert standard in which “underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue.” While polygraph tests are commonly used in police investigations in the US, no defendant or witness can be forced to undergo the test. In United States v. Scheffer (1998),[51] the U.S. Supreme Court left it up to individual jurisdictions whether polygraph results could be admitted as evidence in court cases. Nevertheless, it is used extensively by prosecutorsdefense attorneys, and law enforcement agencies. In the States of MassachusettsMarylandNew JerseyDelaware and Iowa it is illegal for any employer to order a polygraph either as conditions to gain employment, or if an employee has been suspected of wrongdoing. The Employee Polygraph Protection Actof 1988 (EPPA) generally prevents employers from using lie detector tests, either for pre-employment screening or during the course of employment, with certain exemptions.[52]

In the United States, the State of New Mexico admits polygraph testing in front of juries under certain circumstances. In many other states, polygraph examiners are permitted to testify in front of judges in various types of hearings (Motion to Revoke Probation, Motion to Adjudicate Guilt).

In 2007, in Ohio v. Sharma, an Ohio trial court overruled the objections of a prosecutor and allowed a polygraph examiner to testify regarding a specific issue criminal examination. The court took the position that the prosecutors regularly used a polygraph examiner to conduct criminal tests against defendants, but only objected to the examiner’s testimony when the results contradicted what they hoped to achieve.[53] Dr. Louis Rovner [8], a polygraph expert from California, tested the defendant and testified as an expert witness both at a pretrial admissibility hearing and at trial. The defendant, who had been charged with sexual battery, was acquitted.[54]

[edit] Europe

In most European jurisdictions, polygraphs are not considered reliable evidence and are not generally used by police forces. However, in any lawsuit, an involved party can order a psychologist to write an opinion based on polygraph results to substantiate the credibility of its claims. The party must bear the expense themselves, and the court weighs the opinion like any other opinion the party has ordered. Courts themselves do not order or pay for polygraph tests. In most cases, polygraph tests are voluntarily taken by a defendant in order to substantiate his or her claims.

[edit] Canada

In Canada, the polygraph is regularly used as a forensic tool in the investigation of criminal acts and sometimes employed in the screening of employees for government organizations. In the 1987 decision of R. v. Béland, the Supreme Court of Canada rejected the use of polygraph results as evidence in court. This decision did not however affect the use of the polygraph in criminal investigations. The polygraph continues to be used as an investigative tool.

[edit] Australia

The High Court of Australia has not yet considered the admissibility of polygraph evidence. However, the New South Wales District Court rejected the use of the device in a criminal trial. In Raymond George Murray 1982 7A Crim R48 Sinclair DCJ refused to admit polygraph evidence tending to support the defence. His Worship rejected the evidence because

  1. The veracity of the accused and the weight to be given to his evidence, and other witnesses called in the trial, was a matter for the jury.
  2. The polygraph “expert” sought to express an opinion as to ultimate facts in issue, which is peculiarly the province of the jury.
  3. The test purported to be expert evidence by the witness who was not qualified as an expert, he was merely an operator and assessor of a polygraph. The scientific premise upon which his assessment was based had not been proved in any Court in Australia.
  4. Devoid of any proved or accepted scientific basis, the evidence of the operator is hearsay which is inadmissible.

The Court cited, with approval, the Canadian case of Phillion v R 1978 1SCR 18.

[edit] Israel

The High Court of Israel, in Civil Appeal 551/89 (Menora Insurance Vs. Jacob Sdovnik), ruled that as the polygraph has not been recognized as a reliable device, polygraph results are inadmissible as evidence in acivil trial. In other decisions, polygraph results were ruled inadmissible in criminal trials. However, some insurance companies attempt to include a clause in insurance contracts, in which the beneficiary agrees that polygraph results be admissible as evidence. In such cases, where the beneficiary has willingly agreed to such a clause, signed the contract, and taken the test, the courts will honor the contract, and take the polygraph results into consideration. Interestingly, it is common practice for lawyers to advise people who signed such contracts to refuse to take the test. Depending on whether or not the beneficiary signed an agreements clause, and whether the test was already taken or not, such a refusal usually has no ill effects; at worst, the court will simply order the person to take the test as agreed. At best, the court will cancel the clause and release the person from taking the test, or rule the evidence inadmissible.

[edit] India

Recently an Indian court adopted the brain electrical oscillations signature test as evidence to convict a woman, who was accused of murdering her fiance. It is the first time that the result of polygraph was used as evidence in court.[55] On May 5th, 2010, The Supreme Court of India declared use of narcoanalysisbrain mapping and polygraph tests on suspects as illegal and as against constitution.[56]

[edit] Use with espionage and security clearances

Globe icon. The examples and perspective in this section may not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page(April 2010)

In the American military and intelligence communities, polygraphs have been administered both as terms of qualifying for a security clearance and as part of a periodic reinvestigation to retain a clearance. There is no uniform standard for whether the polygraph is needed, as some methods of adjudication do not demand a successful polygraph test to earn a clearance. Other agencies, particularly certain military units, actually prohibit polygraph testing on their members.

It is difficult to precisely determine the effectiveness of polygraph results for the detection or deterrence of spying. Failure of a polygraph test could cause revocation of a security clearance, but it is inadmissible evidence in most federal courts and military courts martial. The polygraph is more often used as a deterrent to espionage rather than detection. One exception to this was the case of Harold James Nicholson, a CIA employee later convicted of spying for Russia. In 1995, Nicholson had undergone his periodic five year reinvestigation where he showed a strong probability of deception on questions regarding relationships with a foreign intelligence unit. This polygraph test later launched an investigation which resulted in his eventual arrest and conviction. In most cases, however, polygraphs are more of a tool to “scare straight” those who would consider espionage. Jonathan Pollard was advised by his Israeli handlers that he was to resign his job from American intelligence if he was ever told he was subject to a polygraph test. Likewise,John Anthony Walker was advised to by his handlers not to engage in espionage until he had been promoted to the highest position for which a polygraph test was not required, to refuse promotion to higher positions for which polygraph tests were required, and to retire when promotion was mandated.[57] As part of his plea bargain agreement for his case of espionage for the Soviet UnionRobert Hanssen would be made to undergo a polygraph at any time as part of damage assessment. In Hanssen’s 25-year career with the FBI, not once was he made to undergo a polygraph. He later said that if he had been ordered to, he may have thought twice about espionage.

Alternatively, the use of polygraph testing, where it causes desperation over dismissal for past dishonesty, may encourage spying. For example, Edward Lee Howard was dismissed from the CIA when, during a polygraph screening, he truthfully answered a series of questions admitting to minor crimes such as petty theft and drug abuse. The CIA failed to see that the firing was an action that would logically anger Howard, and in retaliation for his perceived unjust punishment for minor offenses, he later sold his knowledge of CIA operations to the Soviet Union.[58]

It is also worth noting that polygraph tests may not deter espionage. From 1945 to the present, at least six Americans had been committing espionage while they successfully passed polygraph tests. Two of the most notable cases of two men who created a false negative result with the polygraphs were Larry Wu-Tai Chin and Aldrich Ames. Ames was given two polygraph examinations while with the CIA, the first in 1986 and the second in 1991. The CIA reported that he passed both examinations after experiencing initial indications of deception.[59] According to a Senate investigation, an FBI review of the first examination concluded that the indications of deception were never resolved.[60] The Senate committee reported that the second examination, at a time when Ames was under suspicion, resulted in indications of deception and a retest a few days later with a different examiner. The second examiner concluded that there were no further indications of deception. In the CIA’s analysis of the second exam, they were critical of their own failure to convey to their examiner the existing suspicions that were not addressed in the examination.

In August 2008, the US Defense Intelligence Agency announced that it would subject each of its 5,700 prospective and current employees to a polygraph interrogation at least once annually.[28]

[edit] Hand-held lie detector for U.S. military

A hand-held lie detector is being deployed by the U.S. Department of Defense according to a report in 2008 by investigative reporter Bill Dedman of msnbc.com. The Preliminary Credibility Assessment Screening System, or PCASS, captures less physiological information than a polygraph, and uses an algorithm, not the judgment of a polygraph examiner, to render a decision whether it believes the person is being deceptive or not. The device will be used first in Afghanistan by U.S. Army troops. The Department of Defense orders limit its use to non-U.S. persons.[61]

[edit] Use with sex offenders

Sexual offenders are now routinely polygraphed in many states of the United States and it is often a mandatory condition of probation or parole. In Texas, a state appellate court has upheld the testing of sex offenders under community supervision and has also upheld written statements given by sex offenders if they have committed a further offense with new victims. These statements are then used when a motion is filed to revoke probation and the probationer may then be sentenced to prison for having violated his or her probation.

Regular polygraph testing is sometimes also used during the rehabilitation of convicted sex offenders. Questioning the offender specifically about their inner thoughts, desires, and impulses is intended to give a general indication of their treatment progress and likelihood of future offenses. Similarly, predatory or violent offenders at some facilities may also undergo testing for involuntary physical arousal when shown provocative images relating to their past crimes. Perhaps the most well-known example of this rehabilitation technique is practiced at Coalinga State Hospital in California.[62]

A significant number of Federal appeals courts have upheld polygraph testing for Federal probationers as well. The most recent decision was by the Second Circuit Court of Appeals regarding a New York sex offender.

The UK will soon allow compulsory polygraph tests for convicted sex offenders released on license.[63][64]

[edit] Polygraphy in popular culture

Lie detection has a long history in mythology and fairy tales; the polygraph has allowed modern fiction to use a device more easily seen as scientific and plausible. Notable instances of polygraph usage include uses in crime and espionage themed television shows and some daytime television talk shows, cartoons and films. The most notable polygraph TV show is Lie Detector, which first aired in the 1950s created and hosted by Ralph Andrews. Then in the 1960s Ralph produced a series of specials hosted by Melvin Belli, then in the 1970s hosted by Jack Anderson. In 1998 TV producer Mark Phillips with his Mark Phillips Philms & Telephision put Lie Detector back on the air on the FOX Network—on that program Dr. Ed Gelb with host Marcia Clark cleared Mark Fuhrman from the allegation that he “planted the bloody glove.” Later Phillips produced Lie Detector as a series for PAX/ION—some of the guests included Paula Jones, Reverend Paul Crouch accuser Lonny Ford, Ben Rowling, Jeff Gannon and Swift Boat Vet Steve Garner.

FOX has taken this one step further with their game show The Moment of Truth which pits people’s honesty against their own sense of modesty, propriety, etc. Contestants are given a polygraph test administered by a polygraph expert in a pre-screening session answering over 50 questions. Later they must sit in front of a studio audience including their friends & family for the televised portion of the show. There they need only answer 21 answers truthfully “as determined by the polygraph” to win $500,000. The questions get more personal and/or more revealing as they advance. Most polygraph experts caution that the polygraph techniques used on Moment of Truth do not conform to any known or accepted methods of polygraphy.[citation needed]

Daytime talk shows, such as Maury Povich and Steve Wilkos, frequently use lie detectors to tell if someone is cheating on their significant other.

In one MacGyver episode ‘Slow Death’, MacGyver assists the Indian tribesmen by improvising a polygraph to weed out the crooked doctor. This is made possible by using an analog sphygmomanometer to monitor blood pressure change, and an electronic alarm clock to detect sweat. To test its reliability, MacGyver asked a passenger on the train a few ‘placebo’ questions. The culprit was only discovered when he was trying to hide his crime, thus his sweat triggered the alarm clock and blood pressure climbed up.

In the movie Ocean’s 13, one of the characters beats a polygraph test by stepping on a tack when answering truthfully, which supposedly raises the polygraph’s readings for the truthful answers so they equal the deceptive ones.

In the television series Profit, there is a memorable sequence at the end of episode “Healing” where the eponymous character, Jim Profit, manages to fool a polygraph. He does that by putting a nail through the sole of his shoe and pushing it inside of his heel while answering every question in order to even out the readings. This scene is very graphic, especially for its time, 1996. During a voice over, Profit explains the theory behind the polygraph and the flaws he intends to exploit in it.

In episode 93 of the USA popular science show Mythbusters, they attempted to fool the polygraph by using pain to try to increase the readings when answering truthfully (so the machine will supposedly interpret the truthful and non-truthful answers as the same.) They also attempted to fool the polygraph by thinking happy thoughts when lying and thinking stressful thoughts when telling the truth to try to confuse the machine. However, neither technique was successful for a number of reasons. Michael Martin correctly identified each guilty and innocent subject. The show also noted the opinion that, when done properly, polygraphs are correct 80-99% of the time.[65]

In season 7, episode 5 of Penn & Teller’s Showtime series Bullshit!, it was claimed and appeared to have been demonstrated that polygraphs can be confused or beaten by tightening up one’s anal sphincter. Doug Williams, a former Oklahoma City police polygraph examiner, explained that many large arteries exist around the anal sphincter and that by tightening the muscles, the arteries will constrict, raising one’s blood pressure, and registering a lie. It was then demonstrated by having a woman hooked up to a polygraph, having her write a number from 1-10 on a piece of paper (she chose 7), deny that she chose each number as asked by the examiner but tighten up her anal sphincter on the number 7. Doing this on the number 7 caused it to register as a lie, even though she was telling the truth. This episode also touched on people who have lost their security clearances, and subsequently their jobs, due to failing a polygraph even though they claimed to have told the complete and honest truth.

 

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Polygraph Policy

Polygraph testing is widely used in the intelligence community to screen employees, to establish eligibility for access to classified intelligence information, and for general counterintelligence purposes. It is also used as a tool in the investigation of unauthorized disclosures of classified information and other offenses.

Growing awareness of the limitations of polygraph testing, coupled with official efforts to expand its application, have produced a new degree of controversy over this technology.

Court Rejects Legal Challenge to Polygraph Testing, memorandum opinion in Croddy, et al, v. FBI, October 2, 2006

Dept of Energy Counterintelligence Polygraph PolicyFederal Register, September 29, 2006. “The question of whether and to what extent DOE should use the polygraph as a tool for screening individuals for access to our most sensitive information is the latest manifestation of this perennial struggle.”

Use of Polygraph Examinations in the Department of Justice, DoJ Office of Inspector General, September 2006. “In this report, we provide a detailed description of how polygraphs are used throughout the Department.”

Hearing on Department of Energy Polygraph Program
04 September 2003 — Senate Energy and Natural Resources Committee

Department of Defense Polygraph Program

Polygraph Studies and Related Commentary

Polygraph Hearing

  • “Issues Surrounding the Use of Polygraphs”
    Senate Committee on the Judiciary
    April 25, 2001

    • Statement of Chairman Orrin G. Hatch
    • Statement of Senator Patrick Leahy
    • Mike Capps, Deputy Director for Developmental Programs, Defense Security Service, Alexandria, VA
    • Dr. William Iacono, Professor, Department of Psychology, University of Minnesota, Minneapolis, MN
    • Jeffrey H. Smith, Esq., Partner, Arnold & Porter, Washington, D.C.
    • Mark S. Zaid, Esq., Lobel, Novins & LaMont, Washington, D.C.
    • Richard Keifer, President, American Polygraph Association, Apopka, FL
    • George W. Maschke, AntiPolygraph.org (submitted for the record)

Polygraph Legislation, Rules and Regulations

Old Polygraph News

  • Domenici Wants NAS to Weigh Polygraph Benefits to Lab Security, press release, January 26, 2001. “Senator Pete Domenici today reiterated his concerns that polygraph tests mandated as a means of improving security at the Energy Department’s national laboratories may ultimately be counterproductive.”
  • National Academy Begins Review of Polygraph Validity, January 2001 (offsite). The 18 month review, which was proposed by Sen. Jeff Bingaman and funded by the Department of Energy, will examine the controversial use of polygraph testing for personnel security screening. And it “will include what is known about the effect of medications, sleep deprivation, and illnesses on the physiological responses measured.”
  • The Truth About Polygraphs? by Vernon Loeb, Washington Post online, December 8, 2000 (offsite).
  • DoD Seeks Contractors for Polygraph Validity Study, Commerce Business Daily, December 6, 2000 (offsite). “The objective is to test up to 100 volunteers over a two month period. The goal of this project is to manipulate volunteers into telling specific lies during polygraph examination to test the accuracy of the polygraph examination procedure.”
  • $860,000 DOE Study to Evaluate Polygraphs by Jennifer McKee, Albuquerque Journal, December 5, 2000. “The Department of Energy intends to sink almost a million dollars into an upcoming study to determine — once and for all — how well widespread lie detector tests work in preventing espionage.”
  • DOE Agrees to Fund Bingaman-Urged Polygraph Validity Study, press release, December 4, 2000. “The distinguished scientists and engineers who work at Sandia and Los Alamos deserve to know whether polygraphs produce valid results and this study will help make that determination.”
  • Polygraph Lawsuit Filed, March 15, 2000 (offsite). Plaintiffs, represented by Mark S. Zaid, challenge the use of the polygraph by the FBI, the DEA and the Secret Service. As a result of current policy, they argue, “innocent individuals are falsely labeled drug users, drug dealers, terrorists and/or spies without any reasonable opportunity to ever clear their name.”
  • DOE Polygraph Implementation Plan Announced, DOE press release, December 13, 1999. “Secretary of Energy Bill Richardson said he has significantly reduced the number of employees affected so that approximately 800 federal and contractor employees will be subjected to the polygraph test.”
  • Senate Calls for Study of Polygraph Validity, an amendment introduced by Sen. Jeff Bingaman, October 7, 1999. “The National Institutes of Health should enter into appropriate arrangements with the National Academy of Sciences to conduct a comprehensive study and investigation into the scientific validity of polygraphy as a screening tool for federal and federal contractor personnel.”
  • Bingaman Amendments on Polygraph, September 30, 1999. Two proposed amendments offered by Senator Bingaman would assess the validity of polygraph testing for employee screening, and the potential use of countermeasures.
  • Lawmaker Wants DOE to Abandon Expanded Polygraph Testing at Labs by Keith J. Costa, Inside the Pentagon, September 30, 1999. Calling the Energy Department’s plans to expand polygraph testing at the agency nuclear labs “overly broad,” Rep. Ellen Tauscher (D-CA) calls for a moratorium on polygraph tests.
  • Rep. Ellen Tauscher Calls for Moratorium on Expanded Polygraph Testing at Nuclear Labs, letter to Energy Secretary Richardson, September 28, 1999. “I urge you to enact a complete moratorium on all polygraph tests until an acceptable, limited polygraph plan is developed and vetted.”
  • Remarks on Polygraph Testing by Senator Jeff Bingaman, September 22, 1999. “The proposed DOE rule on polygraphs … is not based on sound science and does not represent reasoned decision making, in my view.”
  • DOE Lie-detector Tests for Employees Criticized by Katy Saldarini, Government Executive, September 22, 1999. Critics “say a new policy requiring employees of the nation’s nuclear weapons complex to submit to lie-detector tests is a misguided approach that could damage, rather than protect, national security.”
  • Senate Intel Committee Calls for “Alternatives” to Polygraph Testing, Senate Report 106-48, May 1999 (excerpt). “Given the potential unreliability of the polygraph system, the Committee believes that alternatives to the polygraph should be explored.”

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Custodial Torture And Its Remedies

“Torture is wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralysing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself”.-Adriana P. Bartow

Custodial torture ranging from assault of various types to death by the police for extortion of confessions and imputation of evidence are not uncommon. Such a method of investigation and detection of a crime, in the backdrop of expanding idea of ‘humane’ administration of criminal justice, not only disregards human rights of an individual and thereby undermines his dignity but also exposes him to unwarranted violence and torture by those who are expected to ‘protect’ him.[1]

In India where rule of law is inherent in each and every action and right to life and liberty is prized fundamental right adorning highest place amongst all important fundamental rights, instances of torture and using third degree methods upon suspects during illegal detention and police remand casts a slur on the very system of administration.[2] Human rights take a back seat in this depressing scenario. Torture in custody is at present treated as an inevitable part of investigation. Investigators retain the wrong notion that if enough pressure is applied then the accused will confess.[3] The former Supreme Court judge, V.R. Krishna Iyer, has said that custodial torture is worse than terrorism because the authority of the State is behind it.[4]

It is a paradox that torture continues to exist in India. This is because India is a liberal democracy with very clearly articulated constitutional and statutory provisions against torture that are constantly being developed and monitored by a strong and independent judiciary. This raises the question: how does torture continue to persist in India?[5]

The crudity of criminal investigation is often blamed on the crudity of resources: the lack of scientific equipment and professionally-trained persons to do the job properly. Although this is an element in the problem, it is not the central one. More important is the sheer impunity enjoyed by law enforcers. This impunity is allowed to flourish for want of laws criminalising and punishing custodial torture, and also due to corruption and the wanton degeneration of courts and other institutions for the maintenance of law in India. Where a torture victim must wait for years in hope that a judge may one day take up his/her case, while meanwhile the perpetrator is being promoted, the very concept of justice is undermined.

Custodial torture is universally held as one of the cruellest forms of human rights abuse. The Constitution of India, the Supreme Court, the National Human Rights Commission (NHRC) and the United Nations forbid it. But the police across the country defy these institutions. Therefore, there is a need to strike a balance between the individual human rights and societal interests in combating crime by using a realistic approach.[6]
Custodial Torture and Death-The Current Status:

The World Medical Association, in its Tokyo Declaration, 1975, defined “torture”[7] as
“the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons, acting alone or on the orders of any authority to force another person to yield information, to make a confession or for any other reason”.

Custodial torture, often known as extra-judicial executions has been on a rise in India especially between 2002 and 2007. According to Asian Centre for Human Rights, the nationwide figures are four custodial deaths per day.[8] There have been 7468 reported custodial deaths in this five year period. However, the severity of the torture in India is far worse than statistics suggest. This is because victims rarely report cases against the police due to fear of reprisals. More than half the cases of custodial torture are not even reported.[9]

While award of compensation in 684 cases of custodial violence was given by the National Human Rights Commission alone from 1994 to 2007, conviction of only seven police personnel in 2004 and 2005 took place as against these overwhelming figures of custodial torture and subsequent deaths. This has led to a deep concern among the authorities.[10]

The explanations for torture can be broadly discussed under categories such as role of media, colonial origins, and institutional weaknesses. Firstly, there is a strong sense that the media exaggerates the incidents of torture and creates a negative image of the police. Second, scholars contend that the current police still suffer from the impact of their colonial origins as a repressive instrument of the police raj (rule). As a result, the “police mindset is steeped into colonial era when the police were supposed to treat every Indian as an enemy of the state.”[11] Third, there is constant pressure on the police from all quarters including politicians and bureaucrats to show instant results.[12] The lack of adequate facilities and personnel for investigation and the extremely high case load with an inefficient supervisory structure also hinders the ability of the police to produce the results required of them, prompting them to take short cuts.[13] In addition, the lack of training in human rights is considered a primary reason why third degree torture continues to exist in India.

For instance, the recent cases of custodial killings reported from the state of Gujarat show a consistent and alarming pattern of tolerance of the use of torture by the government and promotion of it as if it is an essential element of law enforcement and investigation of crime. In Gujarat, the interrogation centres — often torture chambers — of the state police have been functioning in full public view. The suspects are brought in, kept in illegal detention and tortured as part of questioning and later killed and declared as killed in encounter. This procedure is public knowledge, yet no one dares to challenge it. Officers, right from the top are involved in this endeavour.

In a proceeding in the Supreme Court regarding this, the state government admitted in court that it was aware of the existence of the interrogation and torture centres. The government also admitted that in several cases the officers might have also killed the witnesses of arrest and detention in order to avoid questions at a later stage. The Gujarat experience, while being a shocking revelation of the state of policing in that state is also the proof that the public could be forced to silence, if the state so requires, by imparting fear.

Interrogation centers in India are run in the cover of prevention of terrorist activities. Interrogation centers are not limited to the state of Gujarat. In several other states like Uttar Pradesh, Madhya Pradesh, Uttaranchal, Chhattisgarh, Andhra Pradesh and Rajasthan the state governments run similar centres. In some states these centres are run in the name of anti-naxalite action.

In the state of Chhattisgarh for example, the naxalite and anti-naxalite activity has killed hundreds of innocent people. Use of brute force by the state and non-state actors irreparably destroys the social fabric. Besides promoting private armed groups, the state has also pressed into use questionable legislations like the Chhattisgarh Special Public Security Act, 2005. This statute is so loosely worded that anyone could be charged for a crime in this law. Many accepted legal norms in criminal law like non-retroactivity is negated in this statute.

Violence is used widely with impunity in the North-Eastern states. The state of Manipur in particular, is completely militarised. The paramilitary and the army detachments stationed in that state is notorious for the use of torture and violence as the only tool for investigation. Cases reported from Manipur, are mostly involving the armed forces, the Assam Rifles in particular.

Administrative neglect promoting the use of torture is misused by the police and other law enforcement agencies as an excuse for demanding bribe and for not doing their job according to the law. Continuing neglect by the government has also considerably reduced the morale of the law enforcement agencies. Rather than being considered as an essential state service police and other law enforcement agencies are viewed as state sponsored terror agencies mostly filled with criminals.

Remedies Against Custodial Torture:
There are two approaches with respect to the remedies provided for against custodial torture and subsequent death as well. These two approaches are – legal regime and judicial precedents. They can be explained as follows:

Legal Regime:
Constitutional Safeguards:
It has been held in a catena of judgements that just because a person is in police custody or detained or under arrest, does not deprive of him of his basic fundamental rights and its violation empowers the person to move the Supreme Court under Article 32 of theConstitution of India.[14] Detention does not deprive one of his fundamental rights.[15] They don’t flee the persons as he enters the prison although they may suffer shrinkage necessitated by incarceration.[16] However, the extent of shrinkage can and should never reach the stage of torture in custody of such a nature that the persons are reduced to a mere animal existence.

Article 20 of the Constitution of India:

Article 20 primarily gives a person the rights against conviction of offences. These include the principle of non-retroactivity of penal laws (Nullum crimen sine lege[17]) i.e. ex-post facto laws thereby making it a violation of the persons fundamental rights if attempts are made to convict him and torture him as per some statute. Article 20 also protects against double jeopardy (Nemo debet pro eadem causa bis vexari[18]). This Article most importantly protects a person from self-incrimination. The police subject a person to brutal and continuous torture to make him confess to a crime even if he has not committed the same.

Article 21 of the Constitution of India:
This article has been understood in the Indian judiciary to protect the right to be free from torture. This view is held because the right to life is more than a simple right to live an animalistic existence.[19] The expression “life or personal liberty” in Article 21 includes a guarantee against torture and assault even by the State and its functionaries to a person who is taken in custody and no sovereign immunity can be pleaded against the liability of the State arising due to such criminal use of force over the captive person.[20]

Article 22 of the Constitution of India:
Article 22 provides four basic fundamental rights with respect to conviction. These include being informed of the grounds of arrest, to be defended by a legal practitioner of his choice, preventive detention laws and production before the nearest Magistrate within 24 hours of arrest of the person. Thus, these provisions are designed to ensure that a person is not subjected to any ill-treatment that is devoid of statutory backing or surpasses prescribed excesses.

Other Statutory Safeguards:
Indian Evidence Act, 1872:
A confession to police officer cannot be proved as against a person accused of any offence (Sec. 25 Evidence Act) and confession caused by threats from a person in authority in order to avoid any evil of a temporal nature would be irrelevant in criminal proceedings as, inter-alia, provided in Sec. 24. Thus, even though custodial torture is not expressly prohibited by law in India, the evidence collected by illegal means, including torture is not accepted in courts.

Code of Criminal Procedure, 1973:
Sec. 46 and 49 of the Code protect those under custody from torture who are not accused of an offence punishable with death or imprisonment for life and also during escape. Sec. 50-56 are in consonance with Article 22. Sec. 54 of the Code is a provision that to a significant extent corresponds to any infliction of custodial torture and violence. According to it, when an allegation of ill-treatment is made by a person in custody, the Magistrate is then and there required to examine his body and shall place on record the result of his examination and reasons therefore.[21] It gives them the right to bring to the Court’s notice any torture or assault they may have been subjected to and have themselves examined by a medical practitioner on their own request.[22] A compensatory mechanism has also been used by courts.[23] When the Magistrate does not follow procedure with respect to entertaining complaint of custodial torture, it calls for interference by the High Court under Sec. 482 of the Code.[24]

Another significant provision with respect to custodial torture leading to deaths is Sec. 176 of the Code where a compulsory magisterial inquiry is to take place on death of an accused caused in police custody. Sections 167 and 309 of the Code have the object of bringing the accused persons before the court and so safeguard their rights and interests as the detention is under their authorisation.[25]

Indian Police Act:
Sections 7 and 29 of the Act provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same. This can be seen in the light of the police officers violating various constitutional and statutory safeguards along with guidelines given in D.K Basu v. State of West Bengal.[26]

Indian Penal Code (IPC), 1860:
After the controversial Mathura Rape case[27], an amendment was brought about in Sec. 376 of the IPC. Sec. 376(1)(b) penalises custodial rape committed by police officers. This was a welcome change made to the section in question as it finally condemns the acts of police officers who take advantage of their authority.

Sections 330, 331, 342 and 348 of the IPC have ostensibly been designed to deter a police officer, who is empowered to arrest a person and to interrogate him during investigation of an offence from resorting to third degree methods causing ‘torture’.[28]
Judicial Precedents:

The Supreme Court is heralded as a beacon of rights against torture. Indeed, since the 1990s, the Supreme Court has come up with two innovative ways of dealing with custodial torture and custodial death cases namely, the right to compensation for custodial death and torture and the formulation of custody jurisprudence.

The case of Sheela Barse v. State of Maharashtra[29] has provided for guidelines on rights of the arrested persons especially women. The court in this case also emphasised on the need for Magistrates to inform all arrested persons of their rights. Guidelines were also given by the Supreme Court in D.K Basu v. State of West Bengal with respect to rights of arrested persons. The most significant one being the arrestee should be subjected to medical examination every 48 hours during his detention by a doctor from the approved panel of doctors and copies of all prescribed documents should be sent to the concerned Magistrates. Also, the arrestee may be permitted to meet his lawyer during interrogation.

Other Authorities:
It has been recommended in the 177th Law Commission Report by the 16th Law Commission that requisite amendments should be brought about in the Code of Criminal Procedure making it the duty of the police officers in whose custody there are arrested persons that they should ensure their safety and holding them responsible for failure of the same. Thirty years hence, this amendment has still not been incorporated. The presence of an advocate during interrogation of the arrested person is also a recommendation that has been made. The 185th Law Commission Report also makes recommendation regarding rights of arrested persons with respect to the Indian Evidence Act, 1872 which are with respect to s. 27. The Malimath Committee Report has also emphasised on the need for codification of the rights of the arrested persons.[30]

Despite the above, the abominable figures regarding custodial torture have still not improved. One very simple reason behind this could be that persons who are supposed to protect people are themselves the wrongdoers. The criminal justice system in India is supposed to use the reformist approach; however, the approach is such that animals get better treatment.

Conclusion:
The very ideas of a human being in custody save for protection and nurturing is an anathema to human existence. The word custody implies guardianship and protective care. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody.

In a complaint of custodial torture, the court should not adopt a casual approach to it on the ground that it has been made by a habitual offender.[31] It is a perennial problem of statecraft.[32] It therefore, becomes imperative to evolve a system of state governance that allows the police to effectively maintain law and order and to prevent and detect the commission of a crime without jeopardizing legal rights; privileges and claims of laymen. Such a system obviously warrants appropriate control over the police in order to discourage them from exercising their power in a capricious manner. Similarly, an effective institutional grievance-redressal mechanism to vindicate ‘police excesses’ is also the need of the hour.[33]
As held by the Supreme Court, “custodial torture” is a naked violation of human dignity and a degradation which destroys, to a very large extent human personality.

First, custodial torture must be made a crime. This could be brought in by way of a special law. Secondly, many cases of custodial torture could be prevented if law-enforcing agencies followed the existing laws relating to arrest and detention. The rules established by the Supreme Court–though not a complete remedy–should be applied without failure. Those who fail to comply must be prosecuted.

Thirdly, the public–and especially concerned professional groups, including rights groups and the media–must closely monitor police practices to see that government promises are upheld. The political opposition must also see to it that the Director General of Police submits a report to the legislative assembly, and an investigative report, on every case of custodial death and torture.

Fourthly, the central government should be urged to ratify the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The government has failed to ratify the treaty on spurious grounds that existing laws are good enough to prevent custodial torture which is evidently not the case. Were that the case, 60 years after independence and despite numerous concerns and guidelines issued by courts all over India, torture would not persist unabated as it does today.rst, custodial torture must be made a crime. This could be brought in by way of a special law. Secondly, many cases of custodial torture could be prevented if law-enforcing agencies followed the existing laws relating to arrest and detention. The rules established by the Supreme Court–though not a complete remedy–should be applied without failure. Those who fail to comply must be prosecuted.

Thirdly, the public–and especially concerned professional groups, including rights groups and the media–must closely monitor police practices to see that government promises are upheld. The political opposition must also see to it that the Director General of Police submits a report to the legislative assembly, and an investigative report, on every case of custodial death and torture.

Fourthly, the central government should be urged to ratify the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The government has failed to ratify the treaty on spurious grounds that existing laws are good enough to prevent custodial torture which is evidently not the case. Were that the case, 60 years after independence and despite numerous concerns and guidelines issued by courts all over India, torture would not persist unabated as it does today.

 

 

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