Narco-Analysis Test and Law in India
Recently, Narco-analysis has been the most debated topic amongst the legal fraternity, media and common masses.Narco-analysis test, the development of new tools of investigation has led to the emergence of scientific tools of interrogation.. With recent advent of technologies in every sphere of life, criminal investigation is no more left out of its effects. Narco-analysis is one of such scientific forms of investigation in which some sort of statement from the accused is acquired which might form evidence. The Evidence Act is completely silent on such employment of scientific process. Such process has often been criticized as against the tenets of Constitution and on the other hand has been upheld as a necessity to evaluate some complicated issues.
The term Narco-analysis is derived from the Greek word narkç (meaning "anesthesia" or "torpor") and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. The term Narco-analysis was coined by Horseley .Narco-analysis poses several questions at the intersection of law, medicine and ethics. Is the procedure for Narco-analysis is violative of the rights against self-incrimination, guaranteed under Article 20 (3) of Constitution? It figured prominently in the news recently when it became eye of storm and sparked off the debate when media played the role of Unnao rape case2,in utter Pradesh. Accused subjected to Narco-analysis test when he demanded Narco testfor justice and for the faith in criminal justice system.
Constitutional & Legal Provisions on Narco-analysis in India
Like confessions, Narco-analysis tests generally don’t have legal validity as it is made by a semi-conscious person are not admissible in court. The court may, however, grant limited admissibility after considering the circumstances under which the test was obtained. Narco-analysis, brain mapping and lie detector tests against the will of the accused would be violative of Article 20 (3) of the Constitution. The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3). It deals with the privilege against self-incrimination. The privilege against `self incrimination is a fundamental canon of Common law criminal jurisprudence. Art. 20(3) which embodies this privilege says, “No person accused of any offence shall be compelled to be a witness against himself”. Subjecting the accused to undergo the test, as has been done by the investigative agencies in India, is considered by many as a blatant violation of Art.20 (3) of Constitution.
The application of Narco-analysis test involves the fundamental question pertaining to judicial matters and also to Human Rights. The legal position of applying this technique as an investigative aid raises genuine issues like encroachment of an individual’s rights, liberties and freedom. In case of State Bombay v. Kathikalu,3it was held that it must be shown that the accused was compelled to make statement likely to be incriminative of himself. Compulsion means duress, which includes threatening, beating or imprisonment of wife, parent or child of person. Thus where the accused makes a confession without any inducement, threat or promise art 20(3) does not apply. Thus, the privilege against self-incrimination enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice.
The right against forced self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal Procedure (CrPC) and the Indian Constitution. In the CrPC, the legislature has guarded a citizen’s right against self-incrimination. S.161 (2) of the Code of Criminal Procedure states that every person “is bound to answer truthfully all questions, put to him by a police officer, other than questions the answers to which would have a tendency to expose that person to a criminal charge, penalty or forfeiture”. It is said that Narco-analysis constitutes mental torture and thus violates the right to life under Article 21 as it deals with right to privacy. Again, law against intrusion in privacy of individual would not allow brain fingerprinting evidence to be given in court.
Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy v. P.L.Dani4 no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence. She claimed that she had a right of silence by virtue of Article 20(3) of the Constitution and Section 161 (2) of Cr. P.C. The Apex Court upheld her pleas. Moreover, the tests like Narco-analysis are not considered very reliable. Studies done by various medical associations in the US adhere to the view that truth serums do not induce truthful statements and subjects in such a condition of trance under the truth serum may give false or misleading answers. In M.P.Sharma v. Satish Chandra5the Supreme Court observed that since the words used in Article 20(3) were “to be a witness” and not “to appear as a witness” the protection is extended to compelled evidence obtained outside the Courtroom
The term “Right to Privacy” is generic term encompassing various rights recognized to be inherent concept or ordered liberty. The right to be left alone on right of a person to be free from unwarranted publicity is Right to Privacy6 This Right to Privacy is implicit in the right to life and liberty guaranteed to the citizens of India by article 21 of the constitution of India. None can publish anything covering the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If done so, it will be violating right to privacy of person concerned and would be liable in an action for damages. In Indian constitution protection of life, liberty and freedom has throughout interpreted and Article 14, 19, 21 are best example for any constitution against right to privacy.
Practice of Narco-analysis in India
A few democratic countries, India most notably, still continue to use Narco-analysis. Narco-analysis is not openly permitted for investigative purposes in most developed and democratic countries. In India, the Narco-analysis test is done by a team comprising of an anesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer, and supporting nursing staff. The forensic psychologist prepares the report about the revelations, which is accompanied by a compact disc of audio-video recordings. The strength of the revelations, if necessary, is further verified by subjecting the person to polygraph and brain mapping tests.
Now a days, Narco-analysis is steadily being mainstreamed into investigations, court hearings, and laboratories in India. The judgment of an eleven-judge bench in the case of State of Bombay v. KathiKalu Oghad7where it was observed that self-incrimination means conveying information based upon personal knowledge of the person and cannot include merely the mechanical process of producing documents in court. In Ram Jawayya Kupar’s8case It has been held that executive power cannot intrude on either constitutional rights and liberty, or for that matter any other rights of a person and it has also been observed that in absence of any law an intrusion in fundamental rights must be struck down as unconstitutional.
Admissibility of Narco-analysis in the court
While Narco-analysis yielded an immense amount of information, it also triggered off many questions as several critics shared profound sense of skepticism over the administration of serum on the witness to extract truth. Narco-analysis is considered as a tool or aid in collecting and supporting evidence. However doubts are raised whether it amounted to testimonial compulsion in judiciary and violation of human right, individual liberty and freedom. Lawyers are divided on whether the results of Narco-analysis and P300 tests are admissible as evidence in courts, as they claim that confessions made by a semiconscious person is not admissible in court. A Narco-analysis test report has some validity but is not totally admissible in court, which considers the circumstances under which it was obtained and assessed its admissibility. Results of such tests can be used to get admissible evidence, can be collaborated with other evidence or to support other evidence. But if the result of this test is not admitted in a court, it cannot be used to support any other evidence obtained the course of routine investigation.
In India, Narco-analysis was first used in 2002 in the Godhra carnage case. It was also in the news after the famous Arun Bhatt kidnapping case in Gujarat wherein the accused had appeared before NHRC and the Supreme Court of India against undergoing the Narco-analysis . It was again in the news in the Telgi stamp paper scam when Abdul Karim Telgi was taken to the test in December 2003. Though in the case of Telgi, immense amount of information was yielded, but doubts were raised about its value as evidence. Narco-analysis was in the limelight in the context of infamous Nithari village (Noida) serial killings. The two main accused in the Nithari serial killings Mohinder Singh Pandher and Surendra Kohli have undergone Narco-analysis tests in Gandhinagar in Gujarat.
Criticism of Narco-analysis test
Narco-analysis has been criticized on the ground that it is not 100% accurate. It has been found hat certain subjects made totally false statements.. It is often unsuccessful in eliciting truth as such it should not been used to compare the statement already given to the police before use of drug. It has been found that a person who has given false information even after administration of drug. It is not much help in case of malingers or evasive, untruthful person.9 It is very difficult to suggest a correct dose of drug for a particular person. The dose of drug will differ according to will power, mental attitude and physique of the subject. Successful Narco-analysis test is not dependent on injection. For its success a competent and skilled interviewer is required who is trained in putting recent and successful questions. Narco-analysis test is a restoration of memory which the suspect had forgotten. This test result may be doubtful if the test is used for the purposes of confession of crimes. Suspects of crimes may, under the influence of drugs, deliberately withhold information or may give untrue account of incident persistely.10Narco-analysis is not recommended as an aid to criminal investigation. In medical uses like in treatment of psychiatric disorder the Narco-analysis may be useful. Unless the test is conducted with the consent of the suspect it should not be used in criminal investigation.
Right to self incrimination: Is it against public interest
The other view regarding the legal validity of Narco-analysis test is that it is used as an aid for collecting evidence and helps in investigation and thus does not amount to testimonial compulsion. Thus it does not violate the constitutional provision regarding protection against self-incrimination. Supporters of Narco-analysis test are of view that Narco-analyis is particularly useful when there is a requirement to elicit required information for preventing any offences by terrorist. However its application must be assessed objectively so that it can be replaced by existing conventional method of interrogation which brought shame, ignominy and disrepute to police leading to erosion of credibility of criminal justice system. Narco-analysis can evolve as viable effective alternate to barbaric third degree methods. Care however must be taken that this procedure is not misused or abused by investigating officer and should be correlated with corroborative.
Recently, In a major blow to investigating agencies, the Supreme Court in the case of Selvi v. State of Karnataka12held the use of Narco-analysis, brain-mapping and polygraph tests on accused, suspects and witnesses without their consent as unconstitutional and violation of the ‘right to privacy'.A three-Judge Bench of Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and J.M. Panchal, in a 251-page judgment, said:
“We hold 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 judges said:
“The compulsory administration of the impugned techniques violates the right against self-incrimination. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20 (3) of the Constitution [No person accused of any offence shall be compelled to be a witness against himself] protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory.”
The Bench further said:
“Article 20 (3) aims to prevent the forcible conveyance of personal knowledge that is relevant to the facts in issue. The results obtained from each of the impugned tests bear a testimonial character and they cannot be categorised as material evidence.”
The CJI said:
“It is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy.”
The Bench held that if these techniques were used compulsorily if would violate Article 20 (3). The Bench made it clear that even when the subject had given consent to undergo any of these tests, the test results by themselves could not be admitted as evidence because “the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act.”
In the case of Rojo George Vs. Deputy Superintendent of Police while allowing the narco analysis test Court is of the opinion that in present day the criminals started to use very sophisticated and modern techniques for committing the crime. So the conventional method of investigation and questioning to the criminals will not be successful for solution and there is need to utilize some new techniques such as polygraph, brain mapping and narco analysis.
The present criminal justice system is possessed with individual liberty and freedom and in this context a safe passage is unavoidable to criminals due to weakness in the criminal justice system leading to dilution of evidence. Since the validity of the test and admissibility of Narco-analysis has been quashed by the Apex court taking into consideration the circumstances under which it is obtained, the possibility of justice has weakened. It is submitted that if the provision of administering Narco-analysis test is made compulsory for the accused /witness in grave offences, it may pave the way for improving the quality of criminal justice through strengthening of evidence system. This move will bring about a qualitative change in the criminal justice. But a big question mark on the validity of the Narco-analysis test when the demanding for justice by accused person.The Narco test can be said to be unethical, when everything in investigating fails. Every person is innocent until proven guilty, and the same aspect should be maintained while carrying out any criminal investigation
- Narcoanalysis and its evidentiary value in India by Barcelona Panda, The Practical Lawyer, July 2011
- The Hindu ,11 April 2018
- AIR 1961 Cri L J , Vol 2, 2007
- AIR 1978 SC 1025
- AIR 1954 SC 300
- P. RamanahaaAiyer Law Lexicon,2nd Edition,p.1689
- AIR 1961 SC 1808
- The Hindu 21st Jan,2006
- J.M MacDonald, Narcoanalysis and Criminal Law, 1954 Edition
- 2005 Cri L.J 150, Journal Section
- AIR 2010 SC1974 OR Web http://www.scribol.com/30932887/narco-analysis.decision selvi-v.state-of-karnataka-2010
- AIR 1953 SC 131