This article is written by Raslin Saluja from KIIT School of Law, Bhubaneswar. This article analyses the constitutional validity and recognition of Narco analysis by reviewing the case laws and global recognition.
Table of Contents
Introduction
Narco analysis is a term having a Greek origin called narkc, meaning anesthesia or torpor. It is essentially used as a diagnostic and psychotherapeutic technique with the aid of psychotropic drugs where the subject enters into a hypnotic state with all the mental elements neutralized so as to speak only that information which the subject believes to be true. In recent times, it has become one of the most talked-about topics due to the question of the legality of using such degrading techniques to make a man confess his crime.
In the wake of advancing scientific techniques, now we have Deception Detection Tests (DDT) at our disposal for carrying out a criminal investigation. Narco analysis being one of them is used as a means of obtaining information that might later be used as evidence in a court of law. As for India, it still continues to use this technique despite the lack of Indian jurisprudence on utilizing such techniques. Though its usage has been upheld in order to examine critical and complicated issues, it has often continued to receive criticism as infringing the tenets of the Constitution.
Testing procedure
In order to initiate the process, the consent of the subject is mandatorily taken implying that they understand the procedure. The procedure is carried out in government hospitals pursuant to the court’s order. The drugs used generally belong to the class of barbiturates which depress the central nervous system and help in reducing the subject’s inhibitions and make them freer to let go of the information. They slow down brain activity as they imitate one of the chemicals that human brains already produce. Thus not allowing the brain to do critical thinking and manipulations. However, it does not guarantee that it will make it impossible to lie.
The process involves mixing 3 grams of Sodium Pentothal or Sodium Amytal dissolved in 3000 ml. of distilled water. This is done by a team of experts by injecting the solution under controlled circumstances to slowly induce a state of trance. The dose varies according to the subject’s sex, age, health, and physical condition. However, a wrong dose could result in death or put the subject into a coma. The subject’s vitals, pulse rate, blood pressure and the entire procedure is all documented and recorded. Finally, when the subject enters a semi-conscious stage, the interrogation begins in presence of the doctors. The revelation is then recorded in cassettes based on which a report is prepared, later to be used as evidence.
Constitutional recognition
The International Convention and the Constitution of India provide the skeleton framework rights such as ‘Right against self-incrimination and the ‘Right to fair trial’. Article 7 of the International Covenant on Civil and Political Rights (ICCPR) states no person shall be subjected to medical or scientific experimentation without his free consent. In addition, Article 14(3)(g) secures the fundamental guarantee of human rights not to be compelled to testify against himself or to confess guilt. Similarly, a right to a fair trial is encapsulated under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Special emphasis is placed on the definitions of ‘torture’ as well as ‘cruel, inhuman or degrading treatment or punishment’ as specified under Articles 6 and 16 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
Based on moral and ethical grounds, narco analysis does not have explicit legal validity in India. However, in certain cases, limited admissibility is granted based on circumstantial requirements. Consent is the main element for the procedure and if done against the will of the subject violates Article 20(3) of the Indian Constitution. Article 20(3) embodies the privilege against self-incrimination – where an accused person cannot be forced to be a witness against himself. The application of this process also encroaches upon an individual’s human rights, privacy, and freedom. In Ram Jawaya Kupar’s case, 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.
It also goes against the guaranteed Right to Silence as mentioned under Cr.P.C where a person is not bound to answer questions that have a tendency to expose them to a criminal charge, penalty, or forfeiture. This provision is embodied under Section 161(2) of the legislation. This right has its roots in the case in Nandini Sathpathy v. P.L Dani, wherein it was stated that there can be no forcible extraction of statements from the accused who has the right to remain silent during investigation. It is the duty of the prosecution to prove guilt beyond reasonable doubt by collecting evidence. The practice of this procedure not only amounts to mental harassment and torture but also violates Article 21 of the Indian Constitution by infringing one’s privacy while interrogating in a semi-conscious state.
Judicial perspective
Though the practice is not yet openly permitted, it is slowly finding its place in mainstream areas of investigations, court hearings, and laboratories in India. The first-ever narco-analysis was performed in the Forensic Science Laboratory, Bangalore back in 2001 for offenses committed by Veerappan. In regard to that, the National Human Rights Commission of India (‘NHRC’) instructed certain guidelines for the test that it cannot be taken by the police suo moto without the consent of the accused obtained before a Magistrate. The rest of the guidelines are as follows:
- If the accused volunteers for the tests, he should be given access to a lawyer. The physical, emotional, and legal implications of such a test to him should be explained to him in clear terms by the police and the lawyer.
- The consent of the accused should be recorded before a Judicial Magistrate.
- The accused should be duly represented by a lawyer during the hearing before the Magistrate.
- At the hearing, the person should also be clearly informed that the statement made shall not be considered as a ‘confessional statement to the Magistrate but will have the status of a statement made to the police.
- The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
- The process of the actual recording of the Lie Detector Test shall be done in 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 information received must be taken on record.
But the relevant factor of the test lies in instances where conventional crime takes the form of public hue and cry, or to cover up for shortfalls in investigative processes like in the cases of Abdul Karim Telgi in the stamp paper scam where despite yielding information, its evidentiary value was questioned. It was also used in the Nithari village case of serial killing wherein the accused had undergone the process. It is pertinent to note that certain complex crimes require stricter cooperation from the accused than from the usual routine investigative practices and might as well be coercive in nature.
And so in several high-profile cases, for instance, the Nithari killers, the Mumbai train blasts, Aarushi murder case, Malegaon blasts, and Mumbai blasts case, suspects were drugged with the sodium pentathol while interrogation. Furthermore, certain High Courts in Allahabad, Gujarat, and Madras have rather taken a progressive approach for using such techniques for the discovery of the truth.
High Court v. Supreme Court verdict
In earlier judgments, one given by the Madras High Court conveyed that investigation has to be completed within a reasonable time, if not, the benefit of the delay is given to the accused and such techniques may be applied if the accused fails to cooperate in helping reach a conclusion.
Following similar lines in another judgment of Shailendra Sharma v. State & Anr, the court had held that the narco-analysis test is a step in aid of investigation. It helps in forming a significant ground for further investigation and collection of evidence. Thus it becomes important to keep in view the benefit of society at large and the need for proper investigation along with the rights of the accused. Further, according to the court, there is no constitutional infirmity regarding narco analysis, rather it is an aid for investigating procedure and if any self-incriminatory statement is made it cannot be relied upon by the prosecution. The court then directed the accused to undergo the narco-analysis test in a stipulated period. Thus clearly supporting its use in the investigation.
In 2010, the Supreme Court judgment cleared the air. The issue was pertaining to involuntary administration of DDT for aiding and improving investigation in criminal cases, two issues arose with respect to Articles 20(3) and 21. Whereas even though the High courts of Madras, Karnataka, Bombay, and Gujarat were in favour of using the practice and upheld its constitutionality under Article 20(3), these verdicts were considered too mechanical and baseless, and without application of mind. Thus, this was a landmark judgment that held this technique unconstitutional and violative of the right to privacy. The apex court of India has clearly stated that such techniques need consent to be administered and those who volunteer to undergo the test must be assisted by a lawyer. They must also be explained about the physical, emotional, and legal consequences of the test by the police and a lawyer, besides other instructions as mentioned under NHRC 2000 guidelines.
The Bench held that if these techniques were put to use mandatorily, they would infringe 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 is deprived of exercising self-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.
The verdict was a serious setback for the Central Bureau of Investigation (CBI) which had argued that all their tests are legally sanctioned and are critical in cases where they can help provide evidence of crimes being committed.
Current scenario
In September 2017, the Supreme Court had also ruled that no accused can demand a narco test to prove their innocence. It was based on the reasoning that investigation falls under the domain of police and it is not for the court to decide the mode and method. No accused can demand to conduct such tests otherwise there will be no end to the trial.
However, recently after a huge public outrage on the death of a Dalit woman in Hathras, a district in Uttar Pradesh, the state government ordered the people connected to the case to undergo the polygraph and narcoanalysis tests since contradictory statements have been recorded from both the parties involved along with the cops and the victim’s family members. However, in consideration of the precedents, it is not viable for the CM to order such a test without the permission of the relevant judge or the consent of the parties.
Global status
As for the United Kingdom, they do not accept narco tests as evidence. They do not believe in its credibility and further, if it were to be used as evidence determining guilt and innocence, there would be no use of a court. Besides, there have been various resolutions adopted with regard to medical ethics and the participation of physicians in cruel, inhumane, and degrading treatments. That under principle 2 and 4, it would be gross contravention and offense under international instruments for physicians to engage in such acts affecting physical or mental health.
The World Medical Association also revised its Tokyo declaration on this subject and follows a similar stance for non-involvement of physicians in such degrading acts. British Medical Association published a report by a working group for this task. It was entitled, “Medicine Betrayed” and later published a handbook to serve as a guide for health professionals working with security and police agencies.
United States
American Medical Association and the American Psychiatric Association have also reiterated their long-held position against participation in or assistance to interrogation by psychiatrists. In the United States, it has been highlighted that the use of such techniques can cause a potential violation of the Fifth Amendment of the U.S. Constitution (the right to remain silent). A similar inclination has also been shown by the European Court of Human Rights that argues that the use of a truth serum could be considered a violation of a human right to be free from degrading treatment or could be considered a form of torture. It has been noted to be a violation of the Inter-American Convention to Prevent and Punish Torture.
Even though back in 1963, the U.S. Supreme Court ruled, in Townsend v. Sain, that confessions produced as a result of ingestion of truth serum were “unconstitutionally coerced” and therefore inadmissible. The viability of forensic evidence produced from using such techniques has been dealt with in the lower court, wherein it was collectively agreed that they are not reliable for lie detection.
However, in 2012, a judge approved the use of narco analysis in the Aurora, Colorado shooting trial to evaluate whether James Eagan Holmes‘s state of mind was valid for an insanity plea. It was ruled that prosecutors would be allowed to interrogate Holmes by using such drugs to get him to talk if he filed an insanity plea. As they wanted to confirm whether or not he had been legally insane on the date of the shootings. It is not known whether such an examination was carried out.
William Shepherd, chair of the criminal justice section of the American Bar Association, stated, in regard to the above-mentioned case that the use of a ‘truth drug’ would provoke intense legal argument relating to Holmes’s right to remain silent under the fifth amendment of the US constitution. Discussing the possible effectiveness of such an examination, psychiatrist August Piper stated that lowering inhibitions in no way warranty true statements.
India
To its end, even Medical Commission of India has regulated a minor change to its official code of medical ethics, the physician shall not assist in activities that inflict mental or physical trauma or help in the concealment of such torture inflicted by someone else, which will be in clear violation of human rights. This code had been in force for more than two months when doctors administered sodium pentothal for an interrogation. But despite extensive media coverage of the doctor’s participation in pharmacological torture, the medical council has neither sought an explanation nor held an inquiry to demonstrate some resolve in implementing its own laws and ethical guidelines.
Conclusion
While not denying that using such techniques would be of great help in carrying out a criminal investigation, the sanctity of the Courts cannot be taken for granted. So far the courts have only taken on an incomplete view into consideration. However, a middle ground can be formulated wherein the process could be incorporated without transgressing into the boundaries of fundamental rights principles.
References
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