CONSTITUTIONALITY OF NARCO ANALYSIS: DEVELOPMENT & LEGAL APPROACH

Law is a living process, which changes according to the changes in society, science, and ethics and so on. The Legal System should imbibe developments and advances that take place in science as long as they do not violate fundamental legal principles and are for the good of the society. A few democratic countries, India most notably, still continue to use Narco Analysis. The issue of using Narco Analysis test as a tool of interrogation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be clearer in the near future.

There have been orders of various High Courts upholding the validity of Narco Analysis. These judgments are in stark contrast with the earlier judgments of the Supreme Court interpreting Art. 20(3). The veracity lies in the fact that Narco Analysis is still a nascent interrogation technique in the Indian criminal justice system without any rules or guidelines. There have been orders of various High Courts upholding the validity of Narco analysis. These judgments are in stark contrast with the earlier judgments of the Supreme Court interpreting Art. 20(3). The Central government must make a clear policy stand on Narco Analysis because what is at stake is India’s commitment to individual freedoms and a clean criminal justice system.

INTRODUCTION

As science has outpaced the development of law, 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 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 tapes of Telgi, accused subjected to Narcoanalysis procedure.

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, legal questions are raised about the validity of tests like Narco Analysis, with some upholding its validity in the light of legal principles and others rejecting it as a blatant violation of constitutional provisions.

ANALYSIS OF PROCEDURE


First, let us understand what Narco Analysis is and how is Narco Analysis conducted. This will help us to decide whether such tests actually violate Constitutional & Human Rights. In India at Forensic Science Laboratories in Bangalore and Gujarat, Narco Analysis is conducted by injecting 3 grams of sodium pentothal dissolved in 300 ml of distilled water and this prepared solution is administered intravenously along with dextrose over a period of 3 hours with the help of anaesthetist. Obviously this test has some invasion on the body. The rate of administration is so controlled to drive the suspect slowly into the state of hypnotic trance. The ECG and blood pressure are monitored continuously throughout the testing procedure. The revelations made during the hypnotic trance are recorded both in video and audio cassettes. The questions are designed carefully and are repeated persistently in order the ambiguities during drum interrogation. The report prepared by the experts is useful in the process of collecting the evidence. A person is able to lie by using his imagination. In the Narco Analysis Test, the subject enters into a “twilight” stage i.e. a stage between consciousness and unconsciousness. In this state, it becomes difficult for him to lie and his answers would be restricted to facts he is already aware of. Prior to the test, Court’s permission and written consent of subject is secured which are mandatory for conducting the test. The procedure is explained to the subjects. The test is conducted only in the presence of forensic and medical experts.

NARCO ANALYSIS IN VIEW OF CONSTITUTIONAL LAW AND HUMAN RIGHTS

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 petitioners in one of the case said courts could not direct the prosecution to hold Narco analysis, brain mapping and lie detector tests against the will of the accused as it would be violative of Article 20 (3) of the Constitution.

The application of Narcoanalysis 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,[1] 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.

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 Accusarethat 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.

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[2]; 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.

In M.P.Sharma v. Satish Chandra,[3]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. The same point was reiterated in Kathi Kalu Oghad’s case.

RIGHT AGAINST SELF-INCRIMINATION

It has been alleged that Narco Analysis is a blatant violation of the Article 20(3) of the Indian Constitution. However, in this age of ever increasing crime rate, such tests often render a lot of help to the investigation agencies and hence, it is high time to blend Article 20 (3) with the Narco Analysis. It becomes imperative to analyse Article 20 (3) of the Indian Constitution. 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:
1. it is a right pertaining to a person accused of an offence  
2. it is a protection against compulsion to be a witness; and
3. 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[4] 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.

Narco Analysis in the light of Article 20(3): The discussion on Article 20 (3) spells out three requirements which must be met with in order to claim protection under Article 20 (3). If any of these requirements is not met with, Article 20 (3) cannot be invoked. If Narco Analysis is carried out on an accused, it definitely fulfils the first requirement of Article 20 (3). However, the question is whether subjecting a suspect to such a test also fulfils the requirement of Article 20 (3). In the case of State of Andhra Pradesh v. Smt. Inapuri Padma[5], the Court by ordering a few suspects to undergo a Narco Analysis test held that the question of putting the test of testimonial compulsion in case of suspects does not arise.

By conducting Nacrco Analysis, the investigating agencies might discover some information which will help them in the investigation of the crime and thus find out the true culprit. In case, during the test, the accused makes a statement that is incriminatory that need not be made admissible in the Court as it is against Article 20 (3), but the rest of the information can definitely be used by the investigating agencies to solve the case. The above discussion very clearly suggests that Narco Analysis test can be conducted without violating Article 20 (3).      

ADMISSIBILITY IN THE COURT

While Narcoanalysis 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. Narcoanalysis 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 sliberty and freedom.

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.

The Bombay High Court, in a significant verdict in the case of Ramchandra Reddy and Others v State of Maharashtra[6], upheld the legality of the use of P300 or Brain Mapping and narco analysis test. The court also said that evidence procured under the effect of narco analysis test is also admissible. However, defence lawyers and human rights activists viewed that narco analysis test was a very primitive form of investigation and third degree treatment, and there were legal lapses interrogation with the aid of drugs. Narco analysis is 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 narcoanalysis tests in Gandhinagar in Gujarat.

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.

The Indian Courts have so far refused to admit the Narco Analysis as evidence, but Narco Analysis is being carried out by the investigators. The reason is that although confession made to the police or in the presence of police is not admissible in Courts, the information is admissible by which an instrument or object used in commission of crime is discovered. This is clear from the wording of Section 27 of the Indian Evidence Act, 1872. Section 27 of the Indian Evidence Act, 1872 is founded on the principle that if the confession of the accused is supported by the discovery of a fact, the confession may be presumed to be true, and not to have been extracted. It comes into operation only: (i) if and when certain facts are deposed to as discovered in consequence of information received from an accused person in police custody; and (ii) if the information relates distinctly to the fact discovered. If the self incriminatory information given by an accused person is without any threat that will be admissible in evidence and will not be hit by Article 20 (3).           

Section 156 (1) of the Code of Criminal Procedure which reads “Police officer’s power to investigate cognizable cases” states that any officer in charge of a police station without the order of a Magistrate can investigate any cognizable case which a Court has power to inquire into or try under the provisions of Chapter XIII. “Investigation” as defined in Section 2 (h) of Cr.P.C includes all the proceedings under the Code of Criminal Procedure for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by a Magistrate in that behalf. Thus, collection of evidence by Police Officer is permitted under law. Conducting Narcoanalysis Test on accused is in the process of such evidence by the investigating agency. The Karnataka High Court also made a similar observation in the case of Selvi vs State of Karnataka[7] by Koramangala Police Station. This provision is also constitutionally valid.       

LEGAL ANALYSIS & DEVELOPMENT OF LAW  

Let us now understand the approach of the judiciary towards Narco Analysis.        

In the case of Rojo George v. Deputy Superintendent of Police[8], 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 Santokben Sharmanbhai Jadeja v. State of Gujarat[9], the Court while upholding the order for conducting a Narco Analysis on the accused Santokben Sharmanbhai Jadeja, observed that “when after exhausting all the possible alternatives to find out the truth and nab the criminal/accused and when it is found by the prosecuting agency that there is no further headway in the investigation and they are absolutely in dark, there is a necessity of such a test. On the basis of revelations and/or the statement recorded while conducting/performing the Narco Analysis Test, prosecuting agency may have some clues which would further help and/or assist the Investigating Agency to further investigate the crime and at this stage, there will not be any bar of Article 20(3) of the Constitution of India and merely conducting/performing of a Narco Analysis Test on the accused, the protection guaranteed under Article 20(3) of the Constitution of India is not violated. As stated above, only and only at the stage when the prosecuting agency is likely to use such statement as evidence and if it is inculpating and incriminating the person making it, it will attract the bar of Article 20(3).”

The Court further observed that various provisions under the Criminal Procedure Code right from Sections 156 to 159 and other related provisions, collection of evidence by the police officer is permitted under the Law. Conducting the Nsrco Analysis test on accused is to be considered as process of collection of such evidence by the Investigating Agency. The Investigating Agency cannot be prevented to interrogate the accused at the stage of investigation and restraining the Investigating Agency to further investigate the crime through the aforesaid two tests would tantamount to interfere with the right of the Investigating Agency to investigate the crime of which it is statutorily authorized.


In fact, the revelations made during the Narco analysis have been found to be of very useful in solving sensational cases of Mumbai serial train blasts, blasts at Delhi, Malegoan and more recently in Hyderabad and in various other sensational cases of National and International ramifications. In most of these cases, the revelations made have led to the discovery of incriminating information’s favouring probative truth and consequently recoveries have been made in large number of cases U/s 27 of IEA. Thus, Narco Analysis is proving to be a useful tool in the field of criminal investigation.     

The Supreme Court has cleared all the doubts in the case of Selvi vs State of Karnatka[10], where it was held that the results of the test cannot be admitted as an evidence even though consented by the accused because there is no conscious control is being exercised by the subject during the course of test but the court left one option that if the subject consented for the test then any material or information discovered that can be admitted under section 27 of the Indian Evidence Act, 1872. Further it was also held that according to section 25 of Evidence Act “Confession made before any police officer are not admissible as evidence before the court.” Thus the court is of the view that the statements made by the subject during custody are not admissible as evidence unless same has to be cross examined or judicially scrutinized. It also reiterated the guidelines by NHRC and emphasized on their fulfilment while conducting any such test. Some of those guidelines are reiterated below-           

  • No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test. 
  • The consent should be recorded before a Judicial Magistrate. 
  • During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer. 
  • At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a ‘confessional’ statement to the Magistrate but will have the status of a statement made to the police. 
  • The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer. 
  • A full medical and factual narration of the manner of the information received must be taken on record.           

CONCLUSION

Law as a guardian of the society needs to be changed in science and technology, according to the social paradigm, ethics and scientific development. The developments and scientific use of such developments should be welcome step in the criminal justice system. There are other reasons which can be enumerated here: Our criminal justice system needs to raise capability and sophistication and for this object, there is need to include new scientific methods of investigation process. Society is dynamic and the crime pattern has also changed over a period of time and technological advancement made the system much more complex and requires this methods. In India the conviction rate is very less and crime rate is very high. The main factor responsible for this gap is poor investigation, which can only be solved through improvement in the investigation and for this reason scientific method like narco test is a must. Various cases like Abu Salem, Nithari case, Arun Bhatt Kidnapping case etc. the Narco Analysis was very much useful in solving the cases. Thus using this method the complex offences can be resolved. Now a days, criminals are going on high-tech and indulging in cyber and internet crimes. To extract truth from them with traditional method of investigation is not much effective in the criminal justice system. World’s best investigation Agency like US had used the Narco Analysis test for extracting truth after September 11 incident and it was written by Gerald Posner that US agency also privately believes that the Supreme Court of US also implicitly approved using such test where the public safety is at risk. The head of Drafting Committee of the National Criminal Justice System Policy Prof. N.R. Madhavan also recommended for the utilization of scientific method in investigation process in India.


[1] AIR 1961 Cri LJ , Vol 2, 2007

[2] AIR 1978 SC 1025

[3] AIR 1954 SC 300

[4] AIR 1961 SC 1808: (1962) 3 SCR 10

[5] 2008(2)ALD(Cri)668; 2008CriLJ3992

[6] [1 (2205) CCR 355 (DB)]

[7] AIR 2010 SC 1974

[8] 2006 (2) KLT 197

[9] 2008 CriLJ 68, (2008) 1 GLR 497, 2008 (2) KLT 398

[10] AIR 2010 SC 1974

Published by meghachaturvedi

Associate Partner, H.K. Law Offices

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: