Narco Analysis test with special emphasis on its Constitutional ...
As science has outpaced the development of law or at least the laypersons understanding
of it, there is unavoidable complexity regarding what can be admitted as evidence in
court. Narco analysis is one such scientific development that has become an increasingly,
perhaps alarmingly, common term in India.
The term Narco-Analysis is derived from the Greek word narke (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 first reached the mainstream in 1922, when Robert House, a Texas obstetrician used the drug scopolamine on two prisoners.
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 tapes of Telgi, accused subjected to Narcoanalysis procedure.
The narcoanalysis test has been criticized for its unreliability. Scientific studies demonstrate that the test is not foolproof and even induces confessions from innocent persons, as the subject is in a highly suggestible state and prone to give false or misleading answers to questions that may be improperly framed. Hence doubts are raised whether it amounted to testimonial compulsion in judiciary and violation of human right, individual liberty and freedom. Studies have shown that persons who make truthful confessions are those who were likely to confess had interrogators persisted with regular methods; and that persons who lie can continue to manifest a lie even under the influence of a so-called truth serum. It is also feared that memories may be “planted" in the subject’s brain during questioning; a person may come to believe that he has actually committed the crime, even though in reality he is entirely innocent. Research shows that there is a very high risk of “a gross miscarriage of justice through undue dependence upon unreliable statements."
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. So it has been observed through different cases since 2002 that Lawyers, media, and doctors have a divided opinion on the admissibility of Narco Analysis Test. For some it is very vital mode of investigating into the probative truth, and on the other hand it raises questions regarding basis human rights of a person and is termed as third degree.
Some Notable Events & Cases of Narco Analysis in India-
I. In a 2006 judgment (Dinesh Dalmia v State)  , the Madras High Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said about the accused: "he may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary."
II. In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: "No person accused of any offence shall be compelled to be a witness against himself." Statements made under narco analysis are not admissible in evidence.
III. In January 24th, 2008, a bench of Chief Justice K.G. Balakrishnan reserved its ruling after hearing arguments for three days from various parties, including Solicitor General Goolam E. Vahanvati and senior advocate Dushyant Dave, appointed by the bench as amicus curiae to assist the court in the case. Telgi and his accomplices are facing probe by various states' police and other investigative agencies for their alleged criminal acts. These accused people have challenged the legality of the use polygraph, brain mapping and narco-analysis by the investigative agencies to probe the crime.
IV. The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v.State of Maharashtra  , upheld the legality of the use of P300 or Brain finger-printing, lie-detector test and the use of truth serum or narco analysis. The court upheld a special court order given by the special court in Pune as mentioned above, allowing the SIT to conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul Karim Telgi. The verdict also said that the evidence procured under the effect of truth serum is also admissible. In the course of the judgment, a distinction was drawn between “statement" (made before a police officer) and “testimony" (made under oath in court). The Judges, Justice Palshikar and Justice Kakade, said that the lie-detector and the brain mapping tests did not involve any “statement" being made and the statement made under narco analysis was not admissible in evidence during trial. The judgment also held that these tests involve “minimal bodily harm".
V. A court in Kerala recently pronounced that no court order is required to do a narco analysis, Disposing of a petition filed by the CBI seeking permission of the court, the magistrate said that filing this type of a plea would only delay the investigation. The court said nobody could stand in the way of the investigating agency conducting tests recognized as effective investigation tools. When the technicalities of the test itself are not clear and uniform, it becomes difficult to accept the stand taken by the court.
In any criminal investigation, interrogation of the suspects and accused plays a vital role in extracting the truth from them. From time, immemorial several methods, most of which were based on some form of torture have been used by the investigating agencies to elicit information from the accused and the suspects. With the advancement of science and technology, sophisticated methods of lie detection have been developed which do away with the use of “third degree torture" by the police. The scientific tools of interrogation namely- the Lie detector or the Polygraph test, the P300 or the Brain Mapping test and the Narcoanalysis or the Truth Serum test are the main three tests that have recently been developed for extracting confessions. These psychoanalytical tests are also used to interpret the behaviour of the criminal (or the suspect) and corroborate the investigating officers’ observations. However, Such tests generally don’t have legal validity as confessions 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.
The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3). Clause (3) of Article 20 declares that no person accused of an offence shall be compelled to be a witness against himself. This provision may be stated to consist of the following three components:
it is a right pertaining to a person accused of an offence
it is a protection against compulsion to be a witness; and
it is a protection against such compulsion resulting in his giving evidence against himself.
The privilege under clause (3) is confined only to an accused i.e. a person against whom a formal accusation relating to the commission of an offence has been levelled which is in the normal course may result in the prosecution. A person against whom a first information report has been recorded by the police and investigation has been ordered by the Magistrate can claim the benefit of the protection. Further, the guarantee in Article 20 (3) is against the compulsion to be ‘a witness’. In State of Bombay v. Kathi Kalu Oghad  a Bench of the Supreme Court consisting of eleven judges held that: “It is well established that clause (3) of Article 20 is directed against self-incrimination by the accused person. Self-incrimination must mean conveying information based upon personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in the controversy, but which do not contain any statement of the accused based on his personal knowledge." The third component of Article 20 (3) is that it is a prohibition only against the compulsion of the accused to give evidence against himself. In Kalawati v H.P. State , the Supreme Court held that Article 20 (3) does not apply at all to a case where the confession is made by an accused without any inducement, threat or promise.
The privilege against self-incrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice. It also goes against the maxim Nemo Tenetur se Ipsum Accusare that is, ‘No man, not even the accused himself can be compelled to answer any question, which may tend to prove him guilty of a crime, he has been accused of.’ If the confession from the accused is derived from any physical or moral compulsion (be it under hypnotic state of mind) it should stand to be rejected by the court. 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". Arguments have been made 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.
It is well established that the Right to Silence has been granted to the accused by virtue of
the pronouncement in the case of Nandini Sathpathy vs P.L.Dani  no one can forcibly
extract statements from the accused, who has the right to keep silent during the course of
interrogation (investigation). 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.
In Dinesh Dalmia v State  , the Court observed that where the accused had not allegedly come forward with the truth, the scientific tests are resorted to by the investigation agency. Such a course does not amount to testimonial compulsion. From the above discussion, it is very evident that conducting a Narco Analysis test does not violate Article 20 (3) per se. Only after conducting the test, if the accused divulges information which is incriminatory, then it will be hit by Article 20(3). Other information divulged during the test can help the investigation. Thus, there is no reason why we should prohibit such a test on grounds of unconstitutionality.
In the case of Rojo George v. Deputy Superentendent of Police , the Court while allowing a Narco Analysis test observed that in present days the techniques used by the criminals for commission of crime are very sophisticated and modern. The conventional method of questioning may not yield any result at all. That is why the scientific tests like polygraph, brain mapping, narco analysis, etc. are now used in the investigation of a case. When such tests are conducted under strict supervision of the expert, it cannot be said that there is any violation of the fundamental rights guaranteed to a citizen of India.
In M.P.Sharma v. Satish Chandra  , the Apex 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. 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. In the Code Criminal Procedure “injury" is defined in Sections 44, 323,324,328 and the punishment for which may extend to 10 years, imprisonment. Hence, administration of narcotic drug amounts to causing injury. In Nuremberg Trial when Rudolph Hess, the most notorious war criminal, ever claimed that be was suffering from amnesia the prosecutor did not perform Narcoanalysis test on him for the possibility of the test to be fatal. Furthermore, the reliability of scientific tests is not free form doubt. It is necessary to recall background of article 20(3) of the constitution. For this purpose, it is essential that the Union Government should come out with certain guidelines which are to be strictly followed while conduction such a test.
The permission of the Court and the written consent of the person undergoing such a test should be made compulsorily.
The person who is supposed to undergo such a test must be given all the necessary details about the test before he is asked to sign the consent form.
Control and supervision of the forensic laboratories should be made under the autonomous bodies like NHRC and the States Human Rights Commissions.
NHRC has suggested that at the time of polygraph test a forensic psychologist, a psychiatrist and an anaesthetist should remain present. Similar team can be directed to remain present at the time of Narco Analysis with the additional safeguard of entire proceeding audio and videotaped
Narco analysis in India
A few democratic countries, India most notably, still continue to use Narcoanalysis. Narcoanalysis is not openly permitted for investigative purposes in most developed and democratic countries. My interest in narcoanalysis test was revived when it caught the attention of media and critics thereby raising several issues regarding its validity as a scientific tool of investigation and its admissibility in court of law infringement of individual fundamental rights and questions its value as evidence.
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 will prepare the report about the revelations, which will be 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. Narco analysis is steadily being mainstreamed into investigations, court hearings, and laboratories in India. However, it raises serious scientific, legal, and ethical questions. These need to be addressed urgently before the practice spreads further. Narco analysis has become an increasingly, perhaps alarmingly, common term in India. It refers to the process of psychotherapy conducted on a subject by inducing a sleep-like state with the aid of barbiturates or other drugs.
The turning point for narco-analysis in India came in 2002. In June 2002, three months after the burning of a train bogie by a crowd at Godhra in Gujarat, and the subsequent massacre of Muslims, seven persons accused of burning the train were brought to the Sree Sayaji General (SSG) Hospital in Vadodara.
Since then, this test has been conducted in many high profile cases, such as those of the Nithari killers and the Mumbai train blasts, the multi crore fake stamp paper case , etc. The narco-analysis test has found ready acceptance as a device to extract the truth during police investigations. It was also reported that there are about 300 people in the narco-analysis queue at the Forensic Science Laboratory (FSL) in Bangalore alone.
Conclusion with reference to my opinion
Law is a living process, which changes according to the changes in society, science, ethics and so on. Our legal system should be also be in tune with the developments and advances that take place in science to counter the increasing number of criminal activities in the present day scenario where the techniques used by the criminals for commission of crime are very sophisticated and modern.
The conventional method of questioning may not be able to lead to any result at all. Moreover police has been accused of undue delay in investigation and producing doctored documents, the modern methods like Narcoanalysis will act as a boon to the investigation procedure. Although it should not be made a matter of practice and should be used only in demanding situations.
But today when narco-analysis is gaining judicial acceptances and supports despite being alleged as “unreliable & doubtful" science, serious thoughts have to be given about its legal and constitutional validity from human rights perspective.