INTRODUCTION

Before we trace the legal footprints of Forensic Psychology in India, it is imperative to

understand the justice system and what part of the puzzle of the judicial system does forensic
psychology fit. When a crime has been committed the point of contact is the police who
eventually collect evidence from the scene of the crime and deliver it to the Forensic science
laboratories. Once the laboratories complete their scientific assessment it is sent to the court
of law to help in deducing who, when, where, what, why and how.

The protection of human rights through control of crime has always been the primary
responsibility of any state. The state ensures human rights of its subjects through effective
criminal justice system. However the concept of crime is not static in nature. The nature of
crime has been changing and diversifying with the advancement of science and technology.
In this era of information technology, serious crimes like smuggling, drug trafficking,
international frauds, forgeries, terrorism and cybercrimes have acquired global proportions.
Today, crimes are committed in such an intelligent and well planned manner that a person
could commit crime by sitting countries away. But the present day system of criminal
investigation and prosecution in India is not keeping pace with it. The situation now demands
that the law enforcement should keep in pace with the advances in science and technology
and should no longer rely on outmoded techniques of interrogation and detection of crime. It
is true that collection of evidence is an arduous task, as at most times, investigating agencies
have to obtain information from various sources. Since olden times, several methods have
been used to elicit truth from the suspects and most of these methods were based on physical
coercion including torture which is not considered as desirable in this era of human rights by
any civilized country. It is at this juncture, scientific tests based on psychological knowledge
assume significance. 1

Investigators had been utilising psychological knowledge in the collection of evidence in the
past also, though in a primitive way.1 It was ordinarily based on bodily signs due to
psychosomatic interaction to create emotions like fear, anger, greed, happiness etc., in the
subject under interrogation. The body signs which they mainly studied were facial changes,
perspiration rate, shifting of eyes, scratching on the body etc In recent times, the experts are
utilising the invisible psychosomatic

1
Jaiswal BS. Data on Police Organizations (p.22, Databook2017). New Delhi. Deep Graphics ; 2017
History of forensic psychology in India:

One can trace the roots of Forensic Psychology back to 1968 when the first lie detection
division was set up at the Central Forensic Science Laboratory (CFSL) of Central Bureau of
Investigation (CBI). Initially, there was an absence of formal training centers for
professionals to be formally trained in lie detection. References on how to run lie detection
tests were made from books and papers from the western culture (Reid and Inbau, 1966).
Convincing the Indian courts about the efficient jurisprudence of Forensic Psychology was
based on trial and error of scientific tools used. The first court-authorized narco-analysis was
conducted in 1989 by Dr. S.L. Vaya. However, this was against the consent of the person in
question. She went onto assert that consent and court sanction were equally important
keeping the law and fundamental rights in mind. This test was also conducted mainly in
prisons out of a kit, unlike the facilities that professionals have today. Presently, narco
analysis is conducted in a room which is a replica of an operation theatre with the help and
guidance of a team of professionals which include a Doctor, a nurse, and mental health
practitioner. 2 In 2010 the supreme court of India ruled that tests such as Narco analysis, Lie
detection and Brain Electrical Oscillation Signature can be conducted with informed consent.
Information discovered with the help of these instruments can be admitted as evidence in the
court of law. A grey field is observed on how the courts find scientific tools used by forensic
Psychology laboratories are invasive of an individual’s fundamental rights and on the other,
they use the information extracted during the procedures to help them with crime scene
analysis (Sen, 2015).

India's valuable contribution with respect to crime detection A contribution made by Prof.
C.R. Mukundan, Professor at NIMHANS in 2003, a professor of psychology who had a keen
interest in neuroscience discovered the technique of Brain Electrical Oscillation Signature
(BEOS). This technique taps into the experiential memory stored of a suspect and not
conceptual memory. It assists in deducing whether a suspect was a witness to the crime or
part of the crime based on scientific facts. As generations’ progress and new advances are
made in the world, criminals have become more stealth. Due to the advancement in
technology, the modus operandi of the average criminal has become cleverer with his
interaction at the crime scene. Currently, lesser and lesser physical evidence is found at the
crime scene. This leaves the criminal Justice system to resort to expert advice of forensic
2
Chandran R, Koshy J. Brain Mapping: debate over scientific validity continues. Retrieved from
http://www.livemint.com/Politics/JNbZwqCOiDsXa21mXtUORO/Brain-mapping-debate-over-scientificvalidity-
continues.html ; 2010.
psychologists to help them assimilate a profile to track the culprit down. As courts now have
to rely more on oral documentary evidence, Information collected with the help of BEOS
from suspects has become an important tool in crime investigation. This technique, however,
has been targeted with a lot of criticism. As BEOS is based on understanding brain wave
readings of EEG’s prove to observe a lot of ‘noise’ during the procedure, which can deduce
the accuracy of the tool. Further, opponents of the method believe “experiential” and
conceptual knowledge do not fall into categories of memory. This methodology though
accepted more openly in the courtroom does require a lot more peer reviewing and defend its
3
infallible nature.

Role of Forensic Psychologists in the Courtroom

In India, as we know, the police collect the evidence and transport it to the Forensic
Laboratory of the Jurisdiction where experts scientifically examine it. The role of a forensic
psychologist would ideally begin when they are called upon by the police, lawyers or judges
to interview and assess criminals. The formal interview and assessment are then used as
corroborative evidence in the court of law to help execute justice effectively. A Forensic
Psychologist can also continue work towards rehabilitation of a criminal or a victim under
court mandate in a medico-legal ward. According to the Indian Evidence Act 1872, Section
45 states: " Opinions of experts.—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 35 [or finger impressions],
the opinions upon that point of persons specially skilled in such foreign law, science or art,or
in questions as to identity of handwriting] 35 [or finger impressions] are relevant facts. Such
persons are called experts." As per the above clause, a forensic psychologist assists the
judicial system to execute the law in a just manner by presenting facts. These facts are in the
form of reports of in-depth interviews and thorough assessments of the suspects in question.
It must be taken into account that a forensic psychologist acts as an expert who imparts his
knowledge and expertise to the courtroom, which acts as corroborative evidence. At no point,
the expert has the final verdict in dispensing justice, which shall only be executed by the
judge. A crucial role played by a forensic psychologist or forensic psychiatrist would be to
shed light on the “mens rea’’ of suspects. “Mens rea” addresses the state of mind of the said
accused that generally pleads on ‘not guilty’ in the witness stand during a trial. Those who
plead guilty may claim to have committed a crime under the influence of a substance or be
unaware that they have engaged in the crime. This allows the defense to plead lesser
3
Government of India. Constitution of India, Article 20(3),1949. 4
punishment or procrastinate the final verdict of the judge. In such cases, experts step in and
assimilate a thorough forensic interview and assessment to judge how true the individual’s
statement is. This helps the judge execute a verdict, which is fair and in light of the safety of
the society and the individual. The Indian Evidence Act 1872, section 45, allows forensic
psychologists and psychiatrists to lend their expertise to solving in criminal investigations.
This gives forensic psychologists an opportunity to make forensic psychological methods
dynamic, unique and versatile befitting catering to the needs of cases with the help of
feedback procured from the judicial system i.e. police, lawyers, prosecutors, judges and other
4
forensic professionals they assist.

Rehabilitation in light of offenders

India’s prison system requires a considerable make over. Unlike Canadian and United
Kingdom, Indian prisons are not conducive to rehabilitation. Unfortunately this gives a rise to
recidivism of crime rate in the country. Statistics recorded by the Government of India till
2014, reflect an overall rate of recidivism of the country is 7.8%. However, statistics of
individual states reflects more concern. The statistics of recidivism in Tripura 54%,
Telangana 10.1% and Andhra Pradesh 7.2%. A significant contributor towards these statistics
was from the state of Madhya Pradesh. Out of 35,23,577 arrested, 32,70,079 were new
offenders. 1,95,183 held a conviction of one imprisonment record, 44,171 were imprisoned
twice and 14,144 had been imprisoned three times or more. Prisons in India have a hosting
capacity for over 366,000 offenders. However, there is more than 110% overcrowding, and
an appropriate offender-psychologist ratio would be required in order to understand the
perpetrators' mind sets and guide them through their issues. While the idea that prison
systems aresupposed to be rehabilitative in nature is often stressed upon, much needs to be
done in order for that to be put into practice. Indian prisons boast of a capacity to hold
366,000 offenders. However, it is observed that there is a 110% overcrowding. There is lack
of rehabilitative psychologists who would be able to deliver their skill set into guiding
prisoners settling into jails, or life imprisonment. Inmates tend to face an abundance of
mental health issues e.g.: Post Traumatic Stress Disorder, personality disorders, substance
withdrawal, schizophrenia etc. attention needs to be paid and prisoners need to be provided
with aid to manage distress. With correct intervention plans for offenders who deal with
mental illness, the rate of psychiatric recidivism decreases. No fixed interventions exist that

4
Government of India. Ministry of statistics and Programme Implementation. (2015, December 31). Retrieved
from http://www.mospi.gov.in/statistical-year-book-india/2016/206.
work on all offenders. Appropriate assessment is needed in order to effectively deal with
offender issues. Forensic psychologists can carry out individual and group therapeutic
interventions as India has in mental health facilities in India which have been proven
effective, similar assessments

Research Question

Whether collection of evidence based on Forensic Psychological Tests and their admissibility
in trial affect right against self-incrimination and right to fair trial of the accused.

Relevance of Psychology in Law

For proper functioning of society a legal system is necessary. Legal system tries to solve
many problems which exist in today’s society. Psychology is not considered relevant by some
legal authorities but it is relevant and important as law deals with theories of behaviour. 5

There are various benefits of including psychology in law:

 It helps in improving and shaping the decisions of decision makers by giving them
much more accurate images and pictures of human perceptions and preferences.
 It helps in checking the integrity of the witness as in many cases eyewitnesses can be
influenced easily or can be threatened.
 It helps in reduction of false confession.
 Examination of various legally and socially significant areas is included in
psychological studies.
 True justice is ensured when the judgments are made after considering the
psychological aspects of accused’s mind.

Significance of Forensic Psychology in Criminal Justice System In the present scenario,

Forensic psychology has become indispensible in criminal justice administration. Though
forensic psychology has immense application in pretrial, trial and post-trial stages, its main
contribution is in pre-trial investigation stage. In criminal justice administration, Forensic
psychology is useful in many ways. It helps to determine whether a person is capable of
undergoing the trial, assist the court to decide whether the person undergoing the trial should
be treated as an adult or as juvenile or sane or insane. It also helps to decide as to the
suitability and quantum of punishment or as to alternatives to punishment. In Investigation it
could be extensively utilised in developing the profile of a criminal, to ascertain whether a
5
India. (1872). Section 45, Indian Evidence Act, Gazette of India, Government printer (laws). 7
particular person is a drug addict and also to cure them and bring them back to
normalcy.Forensic psychology is also used in training and in evaluating law enforcement
personals. Forensic psychologists also provide service by appearing as expert witness in
courts. It is most importantly used in the interrogations of the suspects, victims and witnesses
for the ascertainment of truth about the occurrence and background information about the
crime.56 Thus, in this modern world, where criminals are resorting to modern scientific
techniques to commit crimes leaving no trace evidence, forensic psychology is the only
solace. 57 Main contribution of forensic psychology is the development of objective tests like
Polygraph, Narco Analysis, Layered Voice Analysis, 58 Brain Electrical Oscillation signature
profiling Tests 59 etc., for the ascertainment of truth during interrogation. Though in general
parlance, forensic psychology has developed many tests of different nature and are being
utilised in legal system, the present study is confined to an area of legal psychology which
deals with forensic psychological methods in truth verification. Forensic psychology division
of Forensic Science

Legal Psychology

It deals with social and cognitive principles and their usage in legal system. Empirical and
psychological research of law along with legal institutions is the basis of legal psychology.
Forensic psychology is based on clinical orientation on experimentation unlike legal
psychology. Legal psychology importance can be seen in legal proceedings in various
manners: 6

 Academics and research– Legal psychologists basically conduct empirical research on

new legal topics, which are yet to be popularized. They also work as mentors and
guide the upcoming legal representatives.
 Advisory role– Many a time it is seen that legal psychologists plays an advisory role
in court systems. They advise the judges and legal decision makers on some
psychological issues pertaining to the concerned case.
 Trial consulting– Sometimes, legal psychologists also work for trial consulting. In
some cases, a psychologist who works as an academician is called up as a trial

6
India, Ministry of Home Affairs, Department of states, National Crime Records Bureau. (2015, September 7).
Recidivism Amongst Persons Arrested Under IPC Crimes. Retrieved from
https://data.gov.in/resources/recidivism-amongst-persons-arrested-under-ipc-crimes-during-2013.
 consultant when their expertise is helpful in any particular case. Trial consultants play
different roles such as picking up the jurors, performing mock trials, etc.
 Policy making and legislative guidance– A legal psychologist’s work is based on
empirical research and many a time there is a need to establish some policies based on
empirical research. Hence, in those times of crises they help the state and national
lawmakers.
 Amicus briefs– Amicus briefs primarily means to provide opinions with a scientific
backup and statistics. But the assistance which a legal professional provides in the
form of amicus briefs is questionable.7

Forensic Psychology

Forensic psychology is the body of the scientific knowledge in applied psychology, utilized
for decisions in legal matters before a court of law. It may be used at the pre-trial stage,
during trial and post-trial stages. It may be used for investigation, collection of evidence, for
evaluation of the suspect or the victim for quantum of responsibility of the subject or other
involved persons or of the circumstances and to ascertain the correct cause of occurrence and
the handling of the situation. Experts in forensic law help in legal proceedings in various
manners:

Assessment of mental condition– Forensic psychology helps in analyzing the mental

condition with regards to the insanity plea, which is a tactic adapted by people to avoid death
sentence and imprisonment. Hence, forensic psychology helps in determining whether a
person is really suffering from any mental disorder or not.

Prediction of violence and risk management– Forensic psychology also helps in

determining whether a person has violent tendencies or not; this indicates the harm that can
be inflicted by such person either upon himself or on others. This method is mainly applied
when an accused is imprisoned or is set free.

Assessment of Child Custody in Divorce– Determining the custody of a child after a

divorce is the most crucial question and also a difficult decision to make as the child’s future

7
Karandikar, S. (2017, June 18). The case of India’s missing Forensic Psychologists. Retrieved from
http://www.livemint.com/Sundayapp/tI8ge5WBhG0HXxCW9mKzNM/The-case-of-Indias-missingforensic-
psychologists.html
is at stake. So the forensic psychologists analyze the couple and after evaluating the situation,
they recommend to the judge or jury as to whom the custody of the child should be given.

Competency to stand trial– Since the trial process is too long and tiring, it cannot be
handled by mentally or physically ill people. Hence, forensic psychology helps in
determining who can endure the trial and who should be immediately sent for psychiatric
treatment. 8

Various Laws Related to Psychology

There are various acts and laws which are related to psychology. These are: Section 84, IPC

 The Mental Health Act, 1987

 The Lunatic Act, 1912

Section 84, Indian Penal Code Act of a person of unsound mind— According to this act
if a person has committed an offence because of unsoundness of mind and does not
understand the nature of his/her act. He/she does not realize that he is doing wrong or
contrary to law.

Indian Lunacy Act, 1912

It is an Act to consolidate and amend the law relating to Lunacy. There are certain definitions
used in this Act which is as follows:

1. Asylum: an asylum or mental hospital for lunatics established or licensed by the Central
Government or any Stale Government.

2. Cost of maintenance: in an asylum includes the cost of lodging, maintenance, clothing,

medicine and care of a lunatic and any expenditure incurred in removing such lunatic to and
from an asylum together with any other charge specified in this behalf by the State
Government in exercise of any power conferred upon it by this Act. 9

3. District Court: means the principal Civil Court of original jurisdiction in any area outside
the local limits for the time being of the Metropolitan towns.

8
Reid JE, Inbau FE. Truth and Deception: The polygraph (“lie detector) technique. Williams and Witkins,
Baltimore ; 1966. 10
9
Sen A. Aarushi. Gurgaon, Haryana. Penguin books publication ; 2015.
4. Criminal lunatic: any person for whose detention in, or removal to an asylum, jail or
other place of safe custody, an order has been made in accordance with the provisions of
section 330 or sections 335 and 336 of the Code of Criminal Procedure, 1973 or of section 30
of the Prisoners Act, 1900, or of section 103A of the Indian Army Act, 1911. 5. Lunatic:
means an idiot or a person of unsound mind.

6. Magistrate: a Metropolitan Magistrate, District Magistrate, Sub-divisional.

7. Magistrate or a Magistrate of the first class: specially empowered by the State

Government to perform the functions of a Magistrate under this Act.

8. Medical officer: means a Gazetted medical officer in the service of the Government and
includes a medical practitioner declared by general or special order of the State Government
to be a medical officer for the purposes of this Act.

Medical practitioner: holder of a qualification to practice medicine and surgery and includes
any person declared by general or special order of the State Government to be a medical
practitioner for the purpose of this Act.

9. Prescribed: prescribed by this Act or by rule made according to the Act.

10. Reception order: an order made under the provisions of this Act for the reception into
an asylum of a lunatic other than a lunatic so found by inquisition.

11. Relative: includes any person related by blood marriage or adoption. Rule: means rule
made under this Act.10

Competency to Stand Trial

Various conditions such as mental retardation, mental illness and neurological issues affect
the emotional, cognitive and behavioral faculties of a person which can impact the ability of a
person to defend a case. Competency to stand a trail is assessment of mental abilities of a
person to defend their case. The mental capacity of a person to participate in a legal
proceeding is dealt in competency to stand a trial.

10
Extensive reforms of the rules of evidence in both Canada and Australia have been undertaken by the
respective Law Reform Commissions. Similarly, South Africa has made an amendment to its evidence rules by
way of the South African Evidence Amendment Act 1988. This Act amended the position of admissibility of
hearsay evidence. Hearsay evidence is now admissible in terms of Section 3 of the amended Act if such
admission is in the interests of justice cf ibid.
Those defendants who are incompetent to stand a trial are not included in a criminal
prosecution and the trial is postponed till that person is considered to be competent.
Psychiatrically incompetent people which are not fit for trial are sent for treatment and are
treated till they are competent enough for trial. Earlier competency for trial was considered
only for criminal cases but not it has been extended to civil cases as well. In civil cases,
competency is referred to the capacity or sue or be sued. The requirements with fitness for
civil proceedings are different from criminal case.

Competency not only comprises of trial but other areas as well like threating of investigating
officers by defendants that they will commit suicide on interrogation. In such cases
competency for interrogation is necessary and investigating officers are request mental health
professionals to check the mental fitness of an individual. The capacity of a person to
understand the questions asked during interrogation and court proceeding as well as to
answer them intelligently and meaningfully is dealt under competency for interrogation.

In many cases, the proceedings are delayed for decades due to incompetency to stand a trial.
There are many reasons responsible for the delay such as non-availability of a psychiatrist,
ignorance, non-availability of psychotropic medicines etc. Due to lack of resources to combat
mental illness, mental competency of a person to fight their case cannot be established.

Need for Assessment of Competency to Stand Trial

Principle of natural justice

The basis of principle of natural justice is two legal maxims:

 Nemo judex in sua causa which means nobody shall be judge in his own cause,
invalidating any judgement where there is a bias or conflict of interest or duty.
 Audi alteram partem which means to hear the other side and giving a fair opportunity
to present one’s case.

The main purpose of natural justice is to save justice and to prevent any misuse of justice. For
a fair trial and a valid decision, these two fundamental principles are necessary in any legal
11
system.

Violation of ‘Right to a fair trial’

11
P.C. Hari Govind, “Scientific Interrogation in Criminal Investigation Vis –a-Vis Rights of the Accused: Ethical
Imbalances,” Vol XXXIV (1&2), Cochin University Law Review, pp.64-107 at pp. 73-76.
Competency to stand a trial is to make sure the autonomy and individual right of a person to
defend himself or herself. The most important question which arises is that whether that
person can do so or not. Therefore, the competency to stand trial has direct effect on deciding
the right to a fair trial.

There are various reasons for determining the competency to stand a trial. These are:

 to safeguard the accuracy of the proceedings

 to ensure procedural fairness  to preserve the dignity of the legal system
 to achieve the objectives of sentencing

Bonnie gave three part rationale: dignity, reliability and autonomy.

Dignity: Running a trial against a person who lacks an understanding of wrong or right and
then punishing him/her would offend the moral dignity of legal proceedings.

Reliability: the term reliability addresses that in order to provide an adequate defense, the
defendant must have the capacity to appreciate the utility of certain facts and the wherewithal
to provide court with that information. If the defendant is not able to provide court with such
information, in such cases the reliability of the criminal proceeding is compromised.

Autonomy: It is based on legal rules which make sure that the decisions regarding the defense
must be made by the defendant.

Right to fair trial is a human right and is listed under the following acts and articles:

 Article 14 of the International Covenant on Civil and Political Rights, which has been
approved by India and is now part of the Protection of Human Rights Act 1973
recognizes the right to fair trial as a human right.
 The concept of a fair trial is a constitutional imperative recognized in Articles 14, 21,
22 and 39-A
 The Code of Criminal Procedure (CrPC) 1973 (Procedure in case of accused being
lunatic, CrPC Sec 328, 329 and 330)

International Conventions and Human Rights of the Accused

Human right is a right inherent in every human being by virtue of his birth as a member in the
human family. The present rights of the accused could be traced even to Vedic times7 and is
found expression in Magna Carta,8 in Bill of Rights in 1689,9 political documents rooted in
the tradition of Virginia Bill of Rights, theAmerican Declaration of Independence, American
Bill of Rights12 and the French Declaration of Rights of Man.13 The concept of Human
Rights of the accused gained momentum after the two world wars, especially after the birth of
United Nations. UN Charter14 reaffirmed its faith in fundamental human rights and UN
Declaration proclaimed in unequivocal terms “universal respect for the observance of Human
Rights for all without distinction as to race, language, sex or religion.”15 Thus, after the
coming into force of UN Charter and UN Declaration of Human Rights, a constitutional basis
for the right of the accused emanated. Apart from the Charter and Universal Declaration of
Human Rights, rights of the accused are also found expression in International Covenant on
Civil and Political Rights, 1966, 16 International Covenant on Economic Social and Cultural
Rights, 196617 and other Human rights instruments.18 The cumulative effect of these
international humanrights instruments is that accused also becomes entitled to basic human
rights like right to be treated with dignity and in a humane manner, right to privacy, right to
12
legal aid etc.

Application of Human Rights Norms Relating to Accused’s Rights in Indian Settings The
human rights norms relating to the accused are binding on all member states and it is the
obligation of the member states, to comply with these standards in the criminal justice
administration within their jurisdiction. India being a party to both ICCPR, ICESCR and also
to certain international Human rights instruments, is bound to respect and implement the
human rights standards set by those instruments by virtue of Vienna
convention,Vishakadecision and also by virtue of Articles 51(C), 246, 253 read with entry 14
of the List I of the seventh schedule of the Constitution.

Moreover, the term “human rights” as defined under Sec2(1) (d) of Protection of Human
rights Act, 1993,means the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the International Covenants and
enforceable by the courts in India. So all Fundamental Rights in Part III and also all human
rights recognised by the international covenants would come within the ambit of human
rights in India. Thus right to life, liberty and security of persons guaranteed in international
conventions is enforceable as Fundamental Right under Article 21 of the Constitution. It is

12
Manjula Batra, Protection of Human Rights in Criminal Justice Administration, Deep and Deep Publication,
New Delhi, (1989), p. 42.
pertinent to note that, in Indian scenario, the human rights relevant to the rights of the
accused derive substance from the Constitution.

The accused is entitled fair investigation and fair trial which is the basic fundamental canon
of criminal justice system in India and is in conformity with the constitutional mandate under
Articles 20, 21 and 22 of the Constitution. Article 12 provides that Fundamental rights are
available against the state which includes legislature, executive, local and other authorities.
This forms the foundation of Indian criminal justice administration whereby the state and its
organs are obliged to respect, protect and fulfill these rights of the citizen. It is also pertinent
to note that state is restricted to make any law which takes away fundamental rights.22 Thus
the basic rights of the accused are so fundamental, that it cannot be violated. The Constitution
also provides for the enforcement of Fundamental Rights by approaching higher judiciary in
case of violation of the rightsApart from constitutional protection, statutory protections are
also available to the accused under The Criminal Procedure Code, 1973 and The Indian
Evidence Act, 1872.

Judiciary has also broadened the ambit of life and personal liberty in Article 21 of the
Constitution. After Maneka decision, due process requirements of procedural fairness,
justness and reasonableness are weaved into Article 21. Thus several rights like right to
speedy trial, right to legal aid, right against handcuffing, right against inhuman
treatment,right to medical aid30 etc., which are the essence of criminal justice administration
were read into Article 21. The accused was guaranteed right against unwarranted
investigation and right to fair trial by virtue of many of these decisions.

Balanced Concept of Human Rights

The basic human rights guaranteed by the Constitution to its citizens without any
discrimination as to caste, religion, race, place of birth or any of them imposes a basic
limitation on the use of authority and discretion by the executive agencies of the criminal
justice system. It is also important to note that while liberties of citizens are recognized, the
imperatives of security, unity and integrity of the nation are given predominance. 13 The
13
Some inquisitorial features are found in the Code of Criminal Procedure, 1973 and in Indian Evidence Act,
1872. For instance, Ss. 228 and 240 of the Code of Criminal Procedure, 1973, suggest that charge against the
accused is to be framed by the Court and not the Prosecution. s. 311 empowers the court to examine any
person as a witness though such person has not been called by any party as a witness .Similar power is also
Constitution permits state which includes police as well as magistracy to impose reasonable
restrictions on the Fundamental Rights of the people to maintain public order, security of
state, decency, morality etc. The Indian judiciary also plays a positive role in the
administration of criminal justice by judiciously resolving the tension between law
enforcement and civil liberties of the citizens of India.

This balanced concept is also evident in the nature of these rights in the International
Conventions. It could be seen that the rights enumerated therein may be classified into three
categories absolute / non derogable rights, strong rights and qualified rights. Absolute / non
derogable rights, are those which must be respected at all times and may not be restricted
even for compelling reasons. However the scope and ambit of these rights are determined by
judiciary, in that sense, they are not absolute.

Qualified rights are declared rights, but they can be interfered on certain grounds to the
minimum extent possible. Lying between these two categories is the strong rights which are
less easy to label and assess. Their strength is not as qualified as the qualified rights, but is
less fundamental than non derogable rights. The arguments for curtailing strong rights must
be more powerful than those kinds of arguments which are needed to establish the
acceptability of interference of qualified rights. Thus, no right is inviolable.

Apart from that, there is always an element of indeterminacy in international human rights
instruments.This is often regarded as merit, as it is capable of flexibility with changing social
conditions Though in the present scenario, more importance is given to the rights of the
victim, it is also not absolute and is subject to rights of the accused.Similarly, rights of the
accused/ suspect are also not absolute and are subject to protection of rights of other parties in
criminal justice system including public interest. Public interest also encompasses in it right
of the accused,

victim and public at large. Thus Fairness in criminal justice process is to be allocated to the
individual as well as at the collective level.38 This could be achieved only by strengthening
the means of crime detection and prosecution by assimilating forensic science techniques in
criminal justice system.

given to the court under s.165 of the Indian Evidence Act, 1872. s. 313 allows the court to examine the
accused at any time to get an explanation regarding the trial. s.321 prohibits the prosecutor from withdrawing
the case without the consent of the Court. Dr. K.N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure,
Eastern Book Company, Lucknow, (5th edn., 2012), p.327.
APPLICATION OF FORENSIC PSYCHOLOGY TO CIVIL AND CRIMINAL
PROCEEDINGS

Civil Proceedings

Making the right choices and acting on those individual choices are considered to be most
fundamental rights of any human being. Choices or actions that are not restricted or
prohibited by criminal law are considered to be private to an individual. Civil law is
concerned with civil or private rights and legal remedies rather than the public concern of
crime (Ciccone, 2003; Howitt, 2002). They are sometimes referred to as private law because
it regulates private relationships between individuals in out society and deal with the rights
and obligations of people and what is needed to protect them (Standler, 1998). In civil law, a
private party such as an individual or a corporation files the law suit and becomes the
petitioner. Civil matters include contract law, family law, tort law, property, and labour law
etc. and civil disputes usually involve some harm, loss or injury to one party of their property.
If a civil case is successful, the defendant is held responsible for the wrongful action and said
to be “liable” or “not liable” for damages. A defendant in civil litigation is never incarcerated,
unless fails to compensate, and never executed. So-called punitive damages are never
awarded in a civil case unless the defendant conduct is found to be egregious and had either

(1) malicious intent (i.e. desire to harm others),

(2) gross negligence (i.e. conscious indifference), or

(3) a wilful disregard for the rights of others (Standler, 1998). This section would include
domestic law related to adults and children, assessment of children and adolescents,
evaluation of civil competency, personal injury, work-related compensation issues, disability,
and trauma caused by sexual harassment and rape.

Criminal Proceedings

The broad purpose of criminal law is to prevent certain undesirable conduct and, thereby, to
protect various interest of the society. Criminal law is framed to impose punishment for the
undesirable conduct with an intention to rehabilitate offenders to protect the society. In a
criminal case, the state takes upon itself the responsibility to file the litigation, investigate and
collect evidence with the help of police, to fight the case in court, through a public prosecutor
and enforce the punishment. The procedure by which a law trial is conducted is also quite
different from the processes involved in a civil trial. An important difference is that the
“standard of proof” required in criminal cases is much higher than the civil cases. Since
criminal law is centrally linked with issues of punishment, allegations and facts must be
proven “beyond reasonable doubt” so that innocent people are not punished (Standler,
1998).14Forensic Psychology in Civil and Criminal Legal Proceedings and Juvinile Crimes In
criminal law, a guilty defendent is punished by either (1) incarceration in a jail or prison, (2)
fine paid to the government, or, in exceptional cases, (3) execution of the defendant: the death
penalty. Crime are divided into two broad classes: felonies: that have a maximum possible
sentence of more than one year incarceration, and misdemeanours: that have a maximum
possible sentence of less than a years incarceration. Punishment in criminal cases is awarded
with a notion that the thread of punishment will deter criminal conduct, an assumptions that
humans are rational beings. However, in practice, it has been shown that individuals get
involved in criminal activities are either impulsive (i.e., not rational) or believe that they will
not be caught by the police (Public Legal Education Association of Saskatchewan, 2002).
This section involves psychological evaluation in areas such as Competency to Stand Trial,
Criminal Responsibility and Insanity, Assessment of Diminished Capacity, Risk and
Dangerousness and Eye Witness Testimony.

Juvenile Crimes

Many juvenile offenders exhibit individual psychological problems, and other have been
raised in problematic or dysfunctional families. Psychological evaluation of juveniles
offenders is an essential part of the family court system, because the thrust of the juvenile
justice system is to provide rehabilitation. A juvenile offenders may need psychological
treatment, educational assistance, or treatment for a substance abuse problem. Provision of
these needed rehabilitation services will reduce the possibility of recidivism. The juvenile
justice system will often direct the necessary psychological treatment, or mandate other
agencies or individuals (including the juvenile and his/her parents) to provide assistance to
the juvenile. Psychological evaluation of juvenile offenders can provide valuable information
to the court, which can be used in developing and effective treatment and rehabilitation plan
for the juvenile. This treatment plan can then be incorporated into sentencing or probation
requirements. These evaluations may be ordered by the court at the request of either the
prosecution or the defense, or the defense15 may simply choose to have an evaluation

14
Selvi v. State of Karnataka, (2010) 7 S.C.C. 263. The court laid down certain guidelines to be followed while
conducting Polygraph, Brain mapping and Narco Analysis Tests.
15
David Bentley and Richard Thomas, “ Fair Trial,” in Madeleine Colvin and Jonathan Cooper, Human Rights in
the Investigation and Prosecution of Crime, Oxford University Press, New York, (2009), pp. 251-284 at p. 260.
completed and submitted to the court for consideration in sentencing. The evaluation process
includes a review of all charges pending against the juvenile, plus a review of all past charges
on the record. It includes academic school records, including attendance records, and child
study team evaluations or classifications. The juvenile is seen for clinical interview to assess
his/her psychological status, and to identify any behavioural disorders. If indicated,
personality test and other psychological disorders may. Depending on the circumstances of
the case, family members may also be interviewed. A comprehensive report summarizes the
finding of the evaluation. Additionally, the report will present conclusions, based on the test
results, regarding any connection between the identified psychological problem and the
juvenile’s criminal activity. The psychologist will make specific recommendations for
treatment of the juvenile, and will present a prognosis regarding the likelihood to repeat
offences in the future, with and without treatment. The instrument to be reviewed vary widely
in the level of expertise required for their administration and interpretation. Some of the
measures, particularly theForensic Psychology: Police and the Law rating scales and
checklists, do not require social background or training beyond a familiarity with instructions
accompanying the measure. This is true, for example, measures of behavioural psychology as
e.g. child Behaviour Checklist (Achenback, 1991, 1999) other instruments requitre a higher
level of training and background in psychological testing are required for certain tests such as
of Wechsler’s Intelligence Scale for Children – III (WISC-III), Weshcler, 1991) and the
Millon Adolescent Clinical Inventory (MACI; Millon, Millon& Davis, 1993). 3.5.4
Evaluating Eyewitness Testimony in Adults and Children The issue here is how accurate is
the eyewitness testimony? Part of the fascination with this question derives from the fact that
people’s fate may hang on human memory, which is known to be fallible. Not only the fate of
the accused rests on witness accuracy, but so may the fate of the victim, as for instance, if an
accurate victim is not believed, the victim may endure further assaults by the perpetrator and
disillusionment with the legal system. Nevertheless, our legal system necessarily relies on
witness testimony, making its study of substantial practical importance. It has profound
theoretical significance as well. Research on eyewitness testimony informs theories of
memory and has led to new insights about the workings of the human mind. Given the crucial
nature of these issues, it is not surprising that the study of eyewitness memory is an active
and at times controversial endeavor. Courts currently show a surprising inclination to permit
psychologists to educate judges and jurors about eyewitness testimony. In educating the
court, psychologists may testify as expert witnesses about relevant research findings or
provide an evaluation of a specific witness. 16Experts in the court help to decide on the basis
of scientific proof. When it comes to knowledge, the court calls for the expert opinion. The
experts give opinions based on the experiments done in the laboratories. They are
scientifically proved results. At the same time they use their knowledge and skills to give
opinion. In this way experts play a very important role to serve the court.

INTERVENTION STRATEGIES FOR OFFENDERS

Punishments and Alternate Routes to Crime Prevention

Three Developments have contributed to the appearance of a new face in crime prevention
over the past decade. The first has been a noticeable increase in the public’s willingness to
punish juveniles with increasing severity The second development has been the advent of the
Campbell Collaboration, an international group of researchers who link results of studies
regarding particular forms of intervention to a general assessment of results that could be
useful in making policy. Thus, systematic reviews are expected to provide reasonable bases
for estimating probable effects in a variety of environments. The third development has been
recognition that interventions to reduce crime have had some adverse effects, particularly
when these bring young misbehaving teenagers together. Forensic Psychology in Civil and
Criminal Legal Proceedings and Juvinile Crimes Adverse effects have been found in
counseling programs, in programs that attempt to target lack of social skills among
delinquents, in programs that provide after school activities for youth, and in programs that
have sought to deal specific messages to youth that might inspire them to avoid further
misbehaviour. These three developments have not radically altered the general picture of
crime reduction policies as requiring, at the individual level, either punishments or treatments
in order to deter crime. These approaches, those that are punitive and those oriented toward
treatment, have been based on a conception of crime as developing from a flawed character—
one for which the flaws have probably been of long standing.

Punishment as Prevention

16
M.P. Sharma v. Satish Chandra, A.I.R. 1954 S.C. 300; State of Bombay v. Kathi Kalu Oghad, A.I.R. 1961 S.C.
1808; Ambalal Chimanla Choksi v. State of Maharashtra, A.I.R. 1966 Bom. 243.
 The view that fear of punishment reduces crime is as old as Western thought. Plato (Plato,
1956) attributed to Protagoras the argument: He who desires to inflict rational punishment
does not retaliate for a past wrong which cannot be undone; he has regard to the future, and is
desirous that the man who is punished and he who sees him punished may be deterred from
doing wrong again. If fear of punishment deters crime, increasing sanctions should reduce
criminality. So obvious had the link between pain and motivation appeared that its scientific
scrutiny awaited the second half of the twentieth century. Measures of the relationship
between criminal activities and indices of the certainty and severity of punishment therefore
offered promise for testing the role of hedonic calculations in motivations for crime.

Criminologists have bifurcated expected effects of punishment:

Those that influence the punished are considered to be specific deterrents; those that
influence others who might commit crimes are considered to be general deterrents. As a
specific deterrent, punishment is expected to prevent repetitions. When repetition occurs,
theory suggests that punishment has been too lenient. This view has a deceptively obvious
appearance. Possibly, criminals who receive long sentences learn to accept the pro-criminal
values expressed by convicts. Also, longer sentences perhaps increase resentment or decrease
the socialising values that could control aggressive desires, driving further antisocial
development. Furthermore, as the opponent process theory suggests, punishments or the
rewards of criminality acquire positive incentive value through time. Stated differently it may
be that punishments are irrelevant, serving only to endorse the image of “hardman” that many
criminals find desirable.17Although severe punishments seem no more effective as crime
deterrents than mild ones, the fear of pain continues to be thought of as an essential
motivator. If street crimes are committed by youngsters proving their courage, perhaps
confirming the risks they are taking should not be expected to deter them. Perhaps, when
people consider whether to commit a crime, they ignore potential sanctions. Effective
punishments would seem to require that the individual at risk for punishment knows what
would be punished. Studies of young children suggest that the timing of punishment as well

17
David Bentley and Richard Thomas, “ Fair Trial,” in Madeleine Colvin and Jonathan Cooper, Human Rights in
the Investigation and Prosecution of Crime, Oxford University Press, New York, (2009), pp. 251-284 at p. 260.
as its regularity influence this knowledge. Fear of punishment could be ineffective in
deterring further crime among criminals and nevertheless effectively reduce the probability
that others would commit crimes. There are other measures like environmental manipulation
and cognitive approaches, diversion and counselling used as preventive methods.

Summary

 The study of mind and behavior is known as psychology.

 Legal psychology deals with social and cognitive principles and their usage in legal
system. Forensic psychology is the body of the scientific knowledge in applied
psychology, utilized for decisions in legal matters before a court of law.
 Section 84, IPC is an act of a person of unsound mind.
 Indian Lunatic Act 1912 is an act to consolidate and amend the law relating to
Lunacy.
 The Mental Health Act (MHA) 1987 was enacted for better treatment and care of
mentally ill persons.
 Various conditions such as mental retardation, mental illness and neurological issues
affect the emotional, cognitive and behavioral faculties of a person which can impact
the ability of a person to defend a case.
 The requirements with fitness for civil proceedings are different from criminal case.
 The proceedings are delayed for decades due to incompetency to stand a trial.
 Competency to stand a trial is to make sure the autonomy and individual right of a
person to defend himself or herself.
 Bonnie gave three part rationale: dignity, reliability and autonomy.

Conclusion
One can observe that the weight of the legal footprints of forensic psychology is not as heavy
we would expect it to be. Currently, it is still used as corroborative evidence in Indian Courts.

Recommendations

An effective standard operating procedure has to be enforced within the system where
forensic psychology comes to play. Standardized Guidelines need to be formed for the
smooth functioning of the system where it clearly suggests where forensic psychology needs
to be involved. Augmentation and training of Forensic psychology will help accelerate the
efficiency of students and professionals. Right man for the right job – the technical skill set of
a forensic psychologist must be taken into account and should take precedence over another
professional's skill set (e.g. clinicians or counselors). Accountability should be instituted into
the system where funds, machines, and manpower is assessed as well e.g. how many trained
forensic psychologists exist in India? Where can they be placed? According to the Bureau of
Police Research and Development (BPRD, 2017), there are 15,579 registered police stations.
This opens a gate to create 15,579 jobs in the market for a specialized skill set like forensic
psychology. Prisons around the country need to employ forensic mental health professionals
to sustain the path of rehabilitation which will eventually show a significant decrease in
statistics of recidivism. Keeping in mind that all crime is man-made and executed, each
Forensic Laboratory must have a Forensic Psychologist or a team to benefit from their skill
set. Time is of the essence in every case. If the current investigating system continues, special
training would need to be imparted to the police who collect evidence including initial
interviews of victims and suspects without effective training. This compromises evidence as
their eye for detail may be amiss. A dire need is to create public awareness of the system and
under what circumstances they can seek help of a forensic psychologist. This awareness can
be done at the educational level to make the masses aware of what comprises forensic mental
health. The need of the hour is a functional ecosystem within the justice field which focuses
on harmony of professionals working together with a collaborative effort more than a
competitive one.