Brain Fingerprints is Real? Can They Put You Away Without You Saying a Word?
The primary goal of this article is to draw attention to the danger of an intrusion into our thoughts or cognition, which is our innermost being. The recent neuroscientific threats having the potential of “brain jacking” are quite real and need to be given due recognition and deliberation.
The researcher has tried to present a wholesome idea of cognitive liberty and privacy in the light of constitutional protection provided in India, with recent cases where this element is touched, considering how recent advances in neurosciences (sciences that deal with the structure or function of the nervous system and brain) are allowing us an expanding ability to monitor and affect mental processes.
Introduction
The recent developments in neuroscience and neurotechnology have steadily made it possible to unlock the human brain and have given us new information about how the brain functions related to our mental states and behavioural patterns, respectively. Thus, comes the concept of the right to mental privacy and cognitive liberty[1].
President Obama has shown concern over the potential impact of neuroscience on human rights, also emphasizing the need to deal with issues such as those “relating to privacy, personal agency, and moral responsibility for one’s actions; questions about stigmatization and discrimination based on neurological measures of intelligence or other traits; and questions about the appropriate use of neuroscience in the criminal justice system”
A new category of human rights: neuro rights
With recent advancements in neurotechnology, neuroscience allows people to have access to the mental processes, and behavioural patterns of the neurons, thus, underpinning human behaviour. So, the need for reconceptualizing and even creating a new category of human rights that is “neuro rights” like cognitive liberty, mental privacy, mental integrity, and psychological continuity, is strongly advocated by various human rights activists.
Modern neuro-devices such as neurostimulators, brain-computer interfaces, and neuroimaging technologies make it possible to record, monitor, decode, and manipulate the neural correlates of mental processes with ever-increasing accuracy and resolution. Despite the enormous potential for clinical and research uses of these developments, they present a fundamental challenge: figuring out whether or under what circumstances should it be acceptable to access or regulate the cerebral activity of another person.
In the context of non-clinical applications of neurotechnology, this query is very pertinent. For instance, a lady was found guilty of murder in India in 2008 based on a brain-based lie-detecting system. The judge sentenced the lady to life in prison, specifically citing a brain scan as evidence that she possessed “experiential knowledge” about the incident that only the murderer could have.
The debate over the legality of Deception Detection tests
The therapeutic, scientific, moral, and legal validity concern of deception detection tests (DDT) like the polygraph, narco-analysis, and brain mapping is very genuine. The DDTs help discover some secrets and lead to information about crimes. Sometimes, the only person who has this information is the subject of a criminal investigation himself. Thus, in such situations, the investigating officials try to extract the information through DDTs knowing the fact that these are not acceptable in court.
The fundamental objection to DDT is whether it is legal to use cruel, humiliating methods to obtain confessions. Acknowledging that the interrogation of the accused is crucial for obtaining evidence, if the defendant remains silent and refuses to answer any of the investigators’ queries, how far can the investigators persuade or force the defendant to produce information? The question at hand or the debate is whether police can employ DDT to get information from the accused. While many people are in favour of using DDT, others vehemently assert that it violates constitutional rights and other provisions.
Earlier Views of the Supreme Court
The Madras High Court stated in a landmark decision[2] of Dinesh Dalmia v State, that the investigating agency must finish its investigation within a reasonable amount of time; otherwise, the accused is granted the benefit of the doubt. Scientific investigation techniques may need to be used to uncover the truth if the accused refuses to cooperate with the investigation process carried out during custodial interrogation.
In a different ruling, Sh. Shailender Sharma v. State, the court had determined that the narco-analysis test is a step that will help the investigation[3]. It serves as a crucial foundation for ongoing research since it might encourage the gathering of additional evidence. Therefore, in light of the rise in crimes against society, consideration must be given to the needs of society as a whole as well as the necessity of a complete and appropriate investigation of individual rights while ensuring that constitutional rights are not violated. As a result, the court believes that the narco-analysis test is constitutionally sound because it is a step in the inquiry and the prosecution cannot rely on or use any self-incriminating statements provided by the accused. The accused was required by the court to take the narcoanalysis test within the allotted time. These verdicts unmistakably supported the use.
Recent Trend of SC over DDTs
The Landmark case of Smt. Selvi Vs. State of Karnataka (2010) 7 SCC 263, [4] , the Supreme Court permitted a special leave petition to be filed after it was disputed that the suspects, the accused, and the witnesses involved in the investigation were subjected to narco-analysis tests, Brain Electrical Activation Profile (BEAP), Functional Magnetic Resonance Imaging (FMRI), and Polygraph tests without the subject’s consent.
These evidence-gathering tests’ constitutionality was called into doubt. The Polygraph or Lie Detector test detects minute changes in the subject’s body while the test is being administered, and based on those changes, the examiner may tell whether the subject is telling the truth or is lying about his or her responses.
The ruling by the SC: The Supreme Court ruled that no one may be forced to submit to the tests without their agreement since doing so would violate their right to “personal liberty,” which is protected by Article 21 of the Indian Constitution. The court ruled that proper precautions had to be in place when these tests were carried out voluntarily.
The bench went on to say that even if these tests had been performed with the cooperation of the suspect, the defendant, or the witness, the results would not have been regarded as adequate proof because the test subject was unable to exercise conscious control over the responses given. However, with the subject’s consent, Section 27 of the Indian Evidence Act permits the acceptance of evidence that was later found during the investigation.
Guidelines: The National Human Rights Commission’s rules for the administration of polygraph exams (also known as lie detector tests) must be followed, and sufficient safety precautions must be used, according to the court’s subsequent rulings.
Held: The constitutionality of lie detector tests and even the other related tests are still an open subject. The only requirement is that the Lie Detector Test must be performed with the willing cooperation of the suspect, the accused, or the witness being tested. The Supreme Court has left the decision to utilize this test to the investigating authorities now. The outcomes of this test, however, are still not regarded as being reliable and valid from a scientific standpoint.
Conclusion
These neuroscientific methods might also be used in fields other than criminal justice. For instance, futurists are concerned of the technologies that could allow for the precise identification of a person’s mental responses to particular stimuli could potentially be used for market research by businesses for gauging customer preferences and creating targeted advertising schemes. Since cognitive reactions are frequently thought of as being connected to academic and professional ability, they might also be used to evaluate mental abilities in contexts relevant to education and employment. This method has the potential to be used to differentiate between employees and students based on their cognitive reactions.
Other issues, particularly those pertaining to privacy, are raised by the advancement of these “mind-reading” devices. The apex court has held that no person should be forced to use any of these procedures, whether as part of a criminal inquiry or otherwise. That would be an unjustified violation of someone’s mental freedom[5]. However, assuming appropriate protections are in place, it does leave the opportunity for the voluntary application of the contested procedures in the framework of criminal justice.
There is a need to be more cautious of these neuro rights in the world of ever-increasing technological developments, which expose our minds to the technocrats to be read and even altered, as per various researchers and futurists. When it comes to mind-altering or reading technologies, I believe that harm reduction should always take precedence before prohibition.
Therefore, a liberal framework is well suitable to address many such concerns. Critics should support a right to cognitive liberty as well since it is the only way to ensure that neither a transhumanist nor a bio-conservative government can legitimately interfere with an individual’s ability to think.
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[1] Ienca, Marcello, and Roberto Andorno. “Towards new human rights in the age of neuroscience and neurotechnology.” Life Sciences, Society and Policy 13.1 (2017): 1-27.
[2] Dinesh Kumar Dalmia v. State of W.B., 2012 SCC OnLine Cal 5578
[3] Shailender Sharma v. State, 2008 SCC OnLine Del 1228
[4] Selvi v. State of Karnataka, (2010) 7 SCC 263
[5] Supra 11
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This article was written and submitted by Renu during her course of internship at B&B Associates LLP. Renu is a 3rd-year B.A.LL.B student at the RJNLU, Patiala.
