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CBI wants to conduct narco test, but Karti Chidambaram has right to refuse

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CBI claims Karti hasn’t been cooperating with the probe, but as per a 2010 SC ruling, he can’t be forced to help build a case against himself.

New Delhi: The Central Bureau of Investigation (CBI) has moved a Delhi court, seeking permission to conduct a narco test on Karti Chidambaram, son of former union finance Minister P. Chidambaram, on the plea that he isn’t cooperating with the probe agency.

Karti has been in CBI custody since 28 February and the CBI has repeatedly accused him of not “cooperating” with the investigators.

However, there are two serious issues with the CBI’s strategy – both legal.

Firstly, unless Karti agrees, the court can’t force him to undergo a narco test. Secondly, it isn’t incumbent upon an accused to help the probe agency in building a case against him.

On both these counts, Karti has the backing of the law.

2010 SC ruling

In 2010, a three-judge bench of the Supreme Court, headed by then-Chief Justice of India K.G. Balakrishnan, ruled that an accused can’t be forced to undergo a “narco-analysis, polygraph examination or the Brain Electrical Activation Profile (BEAP) test”.

Forcing him or her to do so would effectively mean a violation of his right to a “substantive due process”, and also be a violation of the “right against self-incrimination under Article 20(3) of the Constitution”. The same, the bench ruled, would also be a violation of Section 161(2) of Code of Criminal Procedure, 1973.

Article 20 (3) says that no person accused of an offence “shall be compelled to be a witness against himself”.

In its landmark judgment, the SC said, “… 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.

“However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test.”

The bench, however, added that “any information or material that is subsequently discovered with the help of voluntary administered test results” would be admissible as evidence as per Section 27 of the Indian Evidence Act, 1872.

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