Written by Anubhav Seth

INTRODUCTION

The term Narco analysis is a psychotherapeutic and diagnostic technique that uses psychotropic drugs to bring about a stupor in which the subject is in a sedated or hypnotic state where his imagination is neutralized to a point where their thoughts can be exploited by the therapist.[1] Narco analysis has become quite a debated topic among the legal community, media and the common masses. With the recent emergence of technologies in every sphere of our lives, a criminal investigation hasn’t been left out of its effects.

The Narco analysis test is one of the scientific tests used as part of an investigation in criminal cases. It is beginning to be recognised as a very important test in criminal investigation and identification of the accused when all other means of investigation have led to a dead-end. The results of the test are not admissible in the court of law but aid in the investigation procedure.

According to legal and medical experts, people have various conscious and unconscious reasons for taking the Narco analysis test, that is to confess and surrender to interrogation under drug influence but some of the subjects are able to withhold the information. Regarding the Narco analysis tests, it is important to accept the fact that it is an apt mechanism for investigation given that it is the mind of a person where most of the crimes are taking shape.

CONSTITUTIONAL AND LEGAL PROVISIONS ON NARCO ANALYSIS IN INDIA

The Narco analysis tests, like confessions, does not have any legal validity as it is made by a semi-conscious person and are not admissible in the courts. However, the court may grant limited admissibility of the test conclusion after considering the situations and circumstances under which the test was secured.

Narco analysis, lie detector or brain-mapping tests against the will of the accused would be violative of Article 20(3) of the Constitution of India[2] (“Constitution” henceforth). Article 20(3) lays down the right against self-incrimination. Putting through the accused to undergo the test without his or her consent is considered by many as a blatant and gross violation of the privilege under art. 20(3).

The administration of the Narco analysis test involves the elemental question relating to not only judicial matters but also to human rights. Subjecting the accused to this technique as an investigative aid raises various issues such as violation of the privilege under art. 20(3) and encroachment of an individual’s freedom, rights and liberties. In the case of State Bombay v. Kathikalu[3], the court said that it must be shown that the accused was compelled to make statements that are likely to be self-incriminating.

Thus, if the accused makes a confession without any compulsion art. 20(3) would not apply. The right against forceful self-incrimination is also enshrined in the Code of Criminal Procedure[4] (“CrPC” henceforth) under section 161(2)[5]. The Narco analysis is regarded as mental torture and thus violative of the right to privacy which is an intrinsic part of the fundamental right to life[6].

Right to Silence was recognised in the case of Nandini Satpathy v. P.L.Dani[7] where the court said that no one can forcibly extract a confession from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible encroachment into one’s mind is being restored, thereby invalidating the authenticity and legitimacy of the Right to Silence.

The accused in this case claimed that she had a right of silence by virtue of Article 20(3) of the Constitution and Section 161(2) of CrPC and the Apex Court upheld her pleas. The term “Right to Privacy” is a generic term and encompasses various rights recognized to be inherent to the concept of liberty and in the Constitution, protection of life, liberty and freedom has been throughout interpreted various articles such as Art. 14[8], 19(1)[9], 21[10].

CRITICISM OF NARCO ANALYSIS TEST

Narco analysis has been criticized on various grounds, one of them being that it is not 100% accurate. It has been found that certain subjects were able to make false statements in the test. The test is often seen as unsuccessful in extracting the truth as therefore, it should not be used to compare the statements already given to the police before the use of the drug. Another issue is that it is very difficult to suggest an appropriate dose of a drug for a particular person. The dose of the drug will differ according to the physique, willpower and mental attitude of the subject.

For the success of the test, a capable, qualified and skilled interviewer is required who is properly trained. Narco analysis test is like restoration of memory which the suspect might have forgotten. This test result may not be completely accurate if the test is used for the purpose of confession of crimes in a criminal investigation. Suspects of crimes may, under the influence of drugs, deliberately withhold information or may give untrue accounts of incidents persistently[11]. This test is not recommended as a confession of crimes committed by the subject. Unless the test is done with the consent of the subject, it should not be used in criminal investigations.

RIGHT TO SELF INCRIMINATION AND PUBLIC INTEREST

Another view with regards to the legal validity of the test is that it is merely used as a tool for the collection of evidence and aids in investigation and therefore, does not amount to testimonial compulsion. Thus, it does not violate the constitutional provision regarding protection against self-incrimination. Supporters of the Narco analysis test are of the view that the test is particularly useful when there is a requirement to extract sensitive information to preventing any offences by terrorists.

However, its application must be evaluated objectively so that it is treated as a last resort option and can be replaced by the existing conventional method of interrogation. Narco analysis can develop as an effective alternative to barbaric third-degree torture sometimes used in interrogation. However, care must be taken that the test and its result is not misused or abused by the investigating officers.

The Supreme Court case of Selvi v. State of Karnataka[12] has been a major blow to the investigating agencies in India and the criminal justice system to deprive a person of their basic human rights, especially in the modern era. It was held in this case that the use of the Narco analysis, polygraph and brain-mapping tests on the accused, suspects and witnesses without their consent is not only unconstitutional but a gross violation of the ‘Right to Privacy.

A three-Judge Bench of Chief Justice K.G. Balakrishnan, Justices R.V. Raveendran and J.M. Panchal, 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.[13]”

The judges said that the compulsory administration of these techniques violates the right against self-incrimination. The test results cannot be admitted as admissible evidence in the court if they have been obtained through the means of compulsion. Article 20(3) of the Constitution protects a person’s choice between speaking and remaining silent, irrespective of the fact whether the ensuing testimony proves to be inculpatory or exculpatory.

The Bench further said that the objective of art. 20(3) is to prevent the non-consensual conveyance of personal thoughts and information that is relevant to the facts in the issue. The results obtained from the tests bear a testimonial character and therefore, cannot be placed in the category of material evidence.

The Bench held that if these tests were used compulsorily, that is without the consent of the subject, then it would be violative of the fundamental right under Art. 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[14].

CONCLUSION

The technique of Narco analysis has proved to be quite valuable and effective in cases like the Aarushi Talwar murder case^[15], the Nithari killings case^[16] and the Telgi scam^[17]. The powers of the investigating authorities have been restricted by the provisions of the Constitution as well as other legislation, and they act as a barrier to the way in which they can be exercised. Through the Selvi judgement[18], the Supreme Court has laid down when these techniques can be employed and in what manner and procedure.

The authorities need to rethink the use of these tests as an aid in the investigation and find other conventional methods of interrogation and investigation. On the other hand, the Narco analysis test can be said to be unethical too. Every person is innocent until proven guilty, and the same aspect should be maintained while carrying out any criminal investigation.

About the Author

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[1] Narco analysis Test and Law in India, available at: https://madhavuniversity.edu.in/nacro-analysis-test.html (last visited on September 6, 2021)

[2] The Constitution of India, 1950, art.20(3): No person accused of any offence shall be compelled to be a witness against himself

[3] 1961 AIR 1808

[4] The Code of Criminal Procedure, 1973 (Act no. 4 of 1974)

[5] Id., section 161(2): Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

[6] Supra note 2, art. 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.

[7] 1978 AIR 1025

[8] Supra note 2, art. 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

[9] Id., art. 19(1): All citizens shall have the right— (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions 2 [or co-operative societies]; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (g) to practise any profession, or to carry on any occupation, trade or business.

[10] Supra note 6

[11] J.M MacDonald, Narco analysis and Criminal Law, 1954 Edition

[12] Criminal Appeal No. 1267 of 2004

[13] Id., para 223

^[14] J Venkatesan, “Use of narco analysis, brain-mapping unconstitutional: Court” The Hindu, May 5, 2010, available at: https://www.thehindu.com/news/national/Use-of-narco-analysis-brain-mapping-unconstitutional-Court/article16298600.ece (last visited on September 9, 2021)

[15] Nupur Talwar vs. Central Bureau of Investigation and anr. AIR 2012 SC 1921

[16] Surendra Koli vs State Of U.P. ors CRIMINAL APPEAL NO(s). 2227 OF 201

[17] Sri Abdul Kareem Telgi vs The State of Karnataka CRIMINAL APPEAL NO. 1085 OF 2010

[18] Supra note 12

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