Dialogue on NHRC directive

By Nirnimesh Kumar

NEW DELHI, AUG. 23. The Delhi High Court is engaged in a serious dialogue with the National Human Rights Commission, the Union Government and the Delhi Government over the latter's power to issue direction to the Government or any other authority.

The immediate issue which has triggered the debate is NHRC's guidelines for conducting polygraph tests of accused.

Though the guidelines were issued in March, it became a matter of controversy when, despite a direction by the High Court, the Central Forensic Science Laboratory (CFSL) of the Central Bureau of Investigation here did not allow the Delhi police to put four persons, accused of an attempt to murder, under the test after the city police failed to meet the guidelines.

Thereafter, counsel for the complainant, Mr. J.K. Sud, again approached the High Court challenging the Commission's power to issue guidelines for a probe into criminal cases.

The Union Government and the Delhi Government are on the High Court's side. Counsel for both have told a Division Bench comprising Ms. Usha Mehra and Mr. Justice K. Ramamoorthy that NHRC does not have power to issue any direction to the Executive or any authority.

The Additional Solicitor-General of India, Mr. S. Jaisinghani, concluded his argument with the submission that the Protection of Human Rights Act, 1993 does not give power to NHRC to issue the directions in the guise of the guidelines for the polygraph test.

Though Mr. Singhani told the Bench he was on the narrower question of whether the Act enjoins on the Commission the power to issue guidelines, at the same he said in clear terms that it does not have power to issue direction to any authority.

The Bench has now issued notice to NHRC to enlighten the court whether it enjoys such power under the Act. The Bench has asked the petitioner's counsel to serve the notice to the Commission for September 8.

The NHRC has laid down eight guidelines under which an accused could be put through the test. One, no lie detector test should be administered except on the basis of consent of the accused and the test should be optional.

Secondly, if the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implications of such a test should be explained to him by the police and his lawyer.

Thirdly, the consent of the accused should be recorded before a judicial magistrate. During the hearing before the magistrate, the person alleged to have agreed for the test should be duly represented by a lawyer.

It further says that at the hearing the person should also be told in clear terms that the statement that is made shall not be a confessional statement to the magistrate but will have the status of a statement made to the police.

The actual recording of the lie detector test shall be done in an independent agency(such as hospital) in the presence of a lawyer, the Commission adds.

The NHRC laid down the guidelines after it received several complaints that the tests were conducted under coercion and without informed consent, and in certain cases after accused were given certain drugs.

As the existing police practice in invoking the lie detector test is not regulated by any law or subjected to any guidelines, it could tend to become an instrument to compel the accused to be a witness against himself, violating the constitutional immunity from testimonial compulsion, the guidelines say.

The Act says that where an inquiry by the Commission discloses violation of human rights it may, among the various options, approach the Supreme Court or the High Court for such directions, orders or writs as that court may deem necessary.

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