Analyzing narco analysis
With the advancement of science there has been a tremendous change in the modes of commencement of crime, to counter these scientific methods new methods of investigation have also evolved. One such instrument is ‘narco analyses.
This emergence of scientific development has resulted in development of new tools of investigation, namely the narco analysis or the truth serum test, the lie detector or the polygraph test and p300 or the brain mapping test.
Questions have always been raised regarding the validity & constitutionality of these tests, recently on may 5 supreme court of India held that narco ,polygraph & brain mapping test is ‘unconstitutional’.
A three judge bench headed by than CHIEF JUSTICE K.G BALAKRISHNAN, JUSTICE R.S RAVEENDRAN & DALVEER BHANDARI clarified the legal position on the issue, the bench held “we are of considered opinion that no individual can be forced and subjected to such techniques involuntarily & by doing so it amounts to unwarranted intrusion of personal liberty”.
The court further went to declare that the investigation techniques were an unconstitutional invasion of privacy enshrined in article 21.S.C while allowing a batch of petitions against these tests noted “in our considered opinion ,the compulsory administration of the impugned technique violates ‘the right against self-incrimination’, the court has recognized that the projective scope of article 20(3) extends to the investigation stage in criminal cases & when read with section 161(2) of the crpc it protects accused suspects aswell as witness who are examined during investigation.
Chief justice writing the more than 250 page judgment for the bench, however approved of voluntarily administration of techniques with the prior consent of the accused person.
But what exactly is narco analysis and what have been views of high court on the administration of this technique?
The term narco analysis is derived from the greek word narck(meaning “anesthesia” or “torpor”) and is used to describe a diagnostic psycotherapic technique that uses psychotropic drugs ,particularily 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.
In India at Bangalore & Gujarat narco analysis test is conducted by injecting 3 grams of sodium pentothal dissolved in 3000 ml of distilled water and this barbiturate is administerd intravenously along with dextrose over a period of 3 hours with the help of anesthetist ,this dose is dependent on the persons sex ,age health and physical condition .
The questions asked are repeated persistently ,the subject which is put in a state of hypnotism is not in a position to speak on his own but can answer only specific questions by giving some suggestions .
By the administration of these drugs the subject’s inhibitions are lowered and it becomes difficult, not impossible for him to lie. The revelations made by the accused during the state of hypnotic trance are recorded both in video and audio cassettes.
The observation noted and subsequent reports prepared by the experts is useful in process of collecting the evidence
The application of narcoanalysis test involves the fundamental questions pertaining to judicial matter and also to human rights. the legal position of applying this technique as an investigative aid raises genuine issues like encroachment of an individual rights, liberties and freedom.
The privilege against ‘self incrimination’ is a fundamental canon of common law is jurisprudence. Article 20(3) is the main provision in the Indian constitution dealing with crime investigation and trial, it deals with privilege against self incrimination. in the crpc the legislature has guarded a citizens right against self incrimination section 161(2) of the code of criminal procedure states that every person ” is bound to answer truthfully all questions ,put to him by officer ,other than questions the answers to which would have a tendancy to expose that person to a criminal charge,penalty or forfeiture”.
in case of state of Bombay vs kathikalu( A.I.R 1961 CRILJ,VOL2 2007)it was that it must be shown that the accused was compelled to make statements likely to be incriminative of himself ,compulsion means duress which includes threatening, beating or imprisonment of life , parent or child of person.thus where the accused makes a confession without any inducement threat or promise article 20(3) does not apply
analyzing the gurantee contained in article 20(3) of our constitution ,it may be said to consist of two components ,one is right pertaining to a person accused to an offence ,two it is a protection against compulsion to be a witness against oneself.
In mp sharma vs satish Chandra(A.I.R 1954 SC 1025) the apex court observed that since the words
Used in article 20(3) were “to be a witness” and not “to appear as witness” the protection is extended to compelled evidence obtained outside the court room. to be a witness means making of an oral or written statement in or out of an oral or written statement in or out of a court by an accuse of an offence in other words it means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given under compulsion.
However the state arguing in favor of the tests, claim that section 25 of the Indian evidence act 1872 has been inserted with an objective to combat custodial violence of extraction of knowledge and narco analysis can be seen as useful tool to combat the problem of custodial violence.
In dinesh dalmia vs state (CRL JULY 2006,PAGE 2401)the madras high court ruled that narco analysis testimony was not ‘testimony by compulsion’ because the accused “may be taken to the laboratory for such tests against his will but the revelation during such tests is quite voluntary” .
Kerla high court in raju george vs deputy superintend of police & others held that in presnt days the techniques used by the criminals for the commission of crime are very sophisticated and modern .the modern 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. While Bombay high court (nagpur bench) in sampatrao rajeshwarao vs state of maharashtra when asked whether narco analysis ,brain mapping & similar tests whether could be undertaken in absence of consent /willingness of accused/ answered in affirmative manner ,said larger interests should outweigh the individual liberties and fundamental rights & balance can be struck by considering the perspective of reasonable restrictions.
In one of the most famous cases involving narcoanalysis ,in the case of abdul karim telgi the Bombay high court held that “certain physical tests involving minimal bodily harm” like narco analysis and brain mapping did not violate article 20(3) and did not compromise the constitutional protection against self incrimination.
The supporters of narco analysis argues that the result of the tests are not made admissible in court ,it merely aids the investigation procedure. section 27 of the Indian evidence act 1872 provides that ” a fact discovered in consequence of information received from a person accused of any offence ,in the custody of the police officers, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved” .
The narco analysis test has been largely criticized on the ground that it is not 100% accurate. The experts believe that “some 50% of all individuals are suggestible even while fully conscious, meaning they can be made to believe events that never actually occurred.” Narco analysis test is a restoration of memory which the suspect had forgotten, this result may be doubtful if the test is used for the purposes of confession of crimes. suspects of crimes may be ,under influence of drugs, deliberately withhold information or may give untrue account or may give untrue account of incident persistely.
What a person says in a state of hypnotic trance depends on a lot of factors, including their personality, how awake they are, how strongly strongly they want to deny certain facts and so on .dr Andrade says “under narco analysis when inhibitions are lowered a lot of unconscious mind may say things that he wished were true and not that were necessarily true”.
Internationally, expert studies & court opinions have held that though there may be some use in narco analysis .it is by no means a reliable science.
According to former chief justice K.G BALAKRISHNAN such procedures “are illegal & a violation of personal liberty”. The national human rights guidelines have to be observed if a person consents to take a polygraph test, narco analysis a brain mapping to establish one’s innocence.
The present criminal justice system is obsessed with individual liberty & freedom and in this context a safe passage forgone and criminal takes weakness which leads to dilution of . So even after the pronouncement of s.c judgment .the supporters of this method believes that the usage of this method is need to viewed objectively and encouraged to replace or augment the existing conventional methods of interrogation which at times have resulted in custodial deaths.
The debate regarding the validity of these tests will not end; the real problem arises when we test the validity of narco analysis test on the touchstone of constitution, long established criminal jurisprudence and rights of accused.
Bar and bench.com
j.m macdonald ,narcoanalysis and criminal law.
Jagadeesh n. narco analysis leads to more questions than answers.
Narcoanalysis and truth serum-m sivananda reddy