The expression Narco-Analysis has originated from the Greek word ‘narkç’ which means anaesthesia. It depicts a diagnostic and psychotherapeutic method that utilizes psychotropic drugs, especially barbiturates, to induce a stupor in which mental elements with strongly associated effects come to the surface and the therapist then is able to abuse such mental elements. The term Narco-Analysis was coined by Horseley.
Narco-Analysis offers a few inquiries at the convergence of law, medication as well as morals. It is consistently being accepted in examinations, court hearings, and research centres across India. In the legal scenario, applying this procedure to facilitate the investigation raises serious concerns such as infringement of an individual’s rights and freedom. The former Director of the Forensic Sciences Department of Tamil Nadu, Dr P. Chandra Sekharan, has described the method as an unscientific third-degree strategy for examination[1].
The test of Narco-Analysis is carried out by a group consisting of anaesthesiologist, a psychiatrist, an audio-videographer, a clinical/ forensic psychologist and nursing staff. The forensic psychologist is responsible for drafting the disclosures. The firmness of the disclosures, if fundamental, is additionally checked by exposing the individual to polygraph and brain mapping tests.
Table of Contents
Legal Provisions
Article 20(3) of the Constitution of India, 1950
In the Constitution of India, the primary legal provision with respect to crime investigation and trial is Article 20(3). It is regarding the right against self-implication. Exposing the accused to go through the test is considered by numerous individuals as a barefaced infringement of Article 20(3). The privilege against self-incrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice.
Article 21 of the Constitution of India, 1950
Arguments have been made that Narco-Analysis constitutes mental torture and thus violates the right to life under Article 21 as it deals with the right to privacy. The expression “Right to Privacy” is a general term incorporating different rights perceived to be the intrinsic idea of ordered freedom. The right of an individual to be liberated from inappropriate exposure is Right to Privacy [2]. The aforementioned matters cannot be published without the consent of the person notwithstanding the matter is true or false. If it is done, it will infringe the right to privacy of the individual.
Section 161(2) of the Code of Criminal Procedure, 1973
In the Code of Criminal Procedure, 1973 the legislature has guarded citizen’s right against self-incrimination under Section 161(2). It is also contrary to the maxim Nemo Tenetur se Ipsum Accusare which means “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 ”. In Nandini Satpathy v. P.L. Dani [3] the petitioner asserted the right to remain silent by virtue of Article 20(3) of the Constitution and Section 161(2) of the Code of Criminal Procedure, 1973. The Supreme Court maintained the claims.
Admissibility in the court
Narco-Analysis is considered as an apparatus in gathering and supporting evidence. However, questions are raised whether it added up to testimonial compulsion and infringement of a human right and individual freedom.
Ramchandra Reddy and Others v. Territory of Maharashtra
In the landmark judgment of Ramchandra Reddy and Others v. Territory of Maharashtra [4], the Court maintained the legitimateness of the utilization of P300 or Brain Mapping and Narco-Analysis test. The court additionally held that proof secured under the impact of Narco-Analysis test is likewise admissible.
Dinesh Dalmia v. State
In Dinesh Dalmia v. State [5], the High Court of Chennai opined that if an accused is subjected to Narco-Analysis test, it does not mean that the testimony has been obtained by compulsion.
Selvi v. State of Karnataka
In Selvi v. State of Karnataka [6], the Apex Court dismissed the High Court’s dependence on the alleged utility, unwavering quality and legitimacy of Narco-Analysis and different tests as techniques for a criminal investigation. To begin with, the Court observed that compelling a person to go through tests such as brain mapping, Narco-Analysis or polygraph tests itself results in the required compulsion, notwithstanding the lack of actual damage done to direct the test or the character of the statements said in the course of the tests. Furthermore, the Court opined that since the responses given in the course of the Narco-Analysis test are not intentionally and deliberately rendered, and as the person is incapable to if to respond to a given inquiry, the outcomes from each of the three tests add up to the forceful declaration to infringe Article 20(3). The Apex Court held that Narco-Analysis encroaches a person’s entitlement to privacy and adds up to remorseless, cruel or debasing treatment.
Townsend v. Sain
The tests like Narco-Analysis are not viewed as truly trustworthy. Studies done by different clinical organizations in the USA cling to the notion that the truth serums do not induce honest proclamations and the individual in this state may offer bogus or misdirecting responses. In Townsend v. Sain [7], the Court opined that the testimony of the petitioner was not admissible as per the Constitution of USA if the testimony was obtained at the time of police questioning when the petitioner’s conscience was manipulated using a medication which has the characteristics of truth serum.
It must be perceived that it is simply the privilege of the person to allow himself to experience the polygraph test or not and it should not be left to the watchfulness of the police.
https://effectivelaws.com/lily-thomson-vs-union-of-india-case-analysis/
Human rights violation
It is the right of every individual to determine whether he wants to go through the polygraph test or not. If the individual gives his consent to go through the test then it might be allowed. ‘Free consent’ signifies it is deliberate and is not given under compelling conditions.
United Nation Convention against Torture
Torture is defined under Article 1 of the United Nation Convention against Torture. Narco-Analysis test fulfils all the qualities given under the definition of torture Article 1. The utilization of truth serum is regarded as torture in the global system. The definition implies that the tests performed for obtaining information from suspects in Narco-Analysis test, amounts to severe mental suffering or coercion, hence, leading to torture.
The Convention has not been ratified by India, although India has signed it. In the Constitution of India, there is no provision that expressly prohibits torture. Article 21 of the Constitution of India provides the implied protection by rendering the Narco-Analysis test as a violation of the right to privacy.
Human Rights Committee
The Human Rights Committee General Comment 20 in paragraph 12 [8] prohibits the use of evidence obtained under duress in the following words:
“the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.”
Narco-Analysis has been condemned as it is not completely precise. Sometimes, the statements made are absolutely bogus.
It is broadly acknowledged that the right portion of the purported ‘truth serum’ relies upon the physical condition, mental demeanour and self-control of the person who has to go through the test of narco analysis. It is likewise realized that if the person has utilized narcotics substances, a level of “cross-tolerance” could happen. Without satisfactory examination that demonstrates the specific dose for various persons, dosage may place the subject in a state of insensibility or coma or may even lead to the death of the person. Successful Narco-Analysis test is not dependent on injection. For its success, a competent and skilled interviewer is required who is trained in putting recent and successful questions.
Guidelines by NHRC on administration of Lie-detector test
The NHRC, on 16 May 1997, received a petition from Shri Inder P. Choudhrie, who resides in New Delhi. He claimed that when he went to Shimla for attending the hearing of a civil suit, he was detained by the Shimla Police for a murder case, and from that point he had been exposed to different sorts of custodial torment for a time of thirteen days while he was in the custody of the police. He had been unlawfully kept in police custody, was physically and mentally tormented, and was forced to go through the ‘Lie Detector Test’. He had pleaded before the Commission to investigate his matter and get the issue investigated by the CBI.
While disposing of his appeal, the Commission noticed that it is necessary to form certain guidelines regarding the Lie Detector Test as there is no existing law regarding it. The National Human Rights Commission formed certain guidelines on 12 November 1999 to regulate the administration of the Lie Detector Test.
Conclusion
Law is a dynamic process, which keeps on changing as per the alteration in science, society and ethics. The Legal System ought to assimilate improvements that happen in science provided it is not contrary to the essential legal provisions and is beneficial to the general public. However, such scientific advances should not be allowed to violate human rights.
Narco-Analysis can evolve as a viable effective alternative to barbaric third-degree methods and as a helpful instrument to battle the issue of custodial brutality. However, precaution must be taken that this method is not abused and should be supported with corroborative evidence. The National Human Rights Commission must be carefully followed while utilizing any scientific strategy in Narco-Analysis.
REFERENCES
[1] We need to talk about Narco Analysis, The Hindu, available at: https://www.thehindu.com/todays-paper/tp-opinion/We-need-to-talk-about-narcoanalysis/article14757765.ece (Last visited on December 12, 2020)
[2]P Ramanatha Aiyar Law Lexicon 1689 (Lexis Nexis, 2002).
[3] AIR 1978 SC 1025.
[4] 2004 All MR (Cri) 170.
[5] (2007) 8 SCC 770.
[6] (2010) 7 SCC 263.
[7] 372 US 293 (1963).
[8] https://www.refworld.org/docid/453883fb0.html (Last visited on December 12, 2020).
BY APURVA MEHTA | NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW(NUSRL), RANCHI