For about two and a half hours on Wednesday, the Allahabad High Court heard arguments on an issue that goes well beyond the limited purpose of the appeal it is hearing. An order from Allahabad could potentially alter the way narco-analysis and polygraph tests are employed in India: it could either raise their importance--much reduced since the Supreme Court's ruling on the Telgi case, even though tests are still conducted and used. Equally, it could make all the labs that conduct the tests totally irrelevant. To the point that they might as well shut down.
Being tried for the murder of their daughter Aarushi and servant Hemraj, Dr Rajesh and Nupur Talwar had approached the High Court in the hope that it would reverse a trial court order that said a number of documents vital for their defence would not be brought on record. (That is, even though it might be well known what the documents say, their contents will not be considered during trial.)
The Talwars have sought reports of the scientific tests done on the three servants once suspected of the 2008 murders. These documents, admits the CBI, show the involvement of the servants, but they have fought extremely hard to prevent them from being placed before the trial court.
As the Allahabad High court hears the arguments, it is considering an interesting point of law: who can be considered an accused? The straightforward answer is someone who has been charged or is being tried. But how about suspects previously held in custody and then released? Like the servants in this case.
Although no order has been passed yet, the court is inclined to allow the reports of the 'accused' into the record. The irony is, that that even though the tests the couple underwent suggested that they were not involved in the crimes, this does not help the Talwars. They have, in this case, the additional burden of providing an alternate hypothesis. That, can only be built if the servants reports, where they are said to have spoken about how the crimes were committed, are brought on record.
Other documents sought by the Talwars include details of how forensic tests were conducted in this case, and should these be allowed on record the implications are significant. India's forensic labs, that usually go totally unchallenged, may have to become just a little bit more accountable.
The arguments continue in Allahabad on Thursday.