A special NIA court in Jammu in late August rejected the plea of the National Investigation Agency(NIA) for a polygraph test of the two accused arrested in the Pahalgam terror attack, details emerging now show.
NIA arrested the two men, Pravaiz Ahmad Jothatd and Bashir Ahmad from south Kashmir on June 22 for allegedly harbouring the Pakistani terrorists involved in the April 22 Pahalgam terror attack in which 26 people were killed, and providing them with food and logistical support .
While NIA claimed that the accused had volunteered to undergo a lie-detector test and narco analysis to prove their innocence, the accused told the court that they were not willing for such a test.
“…Keeping in view the fact that both the accused persons have submitted in court today that they are not willing to undergo polygraph/narco analysis test, the application is accordingly dismissed,” said the judgement by the NIA judge.
The court’s decision was on August 29 but the order was published this week.
To be sure, the science of both polygraphy and narco analysis remains dodgy, with many experts questioning their ability to detect lies or extract information.
On April 22, three Pakistani terrorists opened fire on tourists in Baisaran meadow of Pahalgam in south Kashmir , killing 25 tourists and a local guide. The three were subsequently killed by security forces in an encounter on July 28 in a hilly area of Srinagar outskirts.
After the Pahalgam attack, Jothatd and Ahmad were arrested by NIA under Section 19 of the Unlawful Activities (Prevention) Act, 1967.
The court’s August 29 order said that after Superintendent District Jail Jammu was directed to produce both the accused in court on August 29, the two said they were not willing to undergo polygraph/ narco analysis test.
The order stated that involuntary administration of these would violate the “right against self-incrimination“ enumerated in Article 20 (3) of the Constitution.
“This is because the underlying rationale of said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the ‘right against self incrimination,” the order added
Quoting Smt Selvi & Ors Vs State of Karnataka 2010 (7) SCC 263, the court said 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,” the order said.
The court said that the National Human Rights Commission published guidelines for the administration of Polygraph Test (Lie Detector Test) on an accused in 2000.
“These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the ‘Narco analysis technique’ and the ‘Brain Electrical Activation Profile’ test. The text of these guidelines has been …that no lie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test,” it said.
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