Narco-Analysis

The search for effective aids for interrogation from an uncooperative source has always been a top priority for law enforcement agencies. In earlier days, the method of using physical force to obtain truth was a controversial one and had to be substituted with painstaking and time consuming inquiry believing that direct methods would produce quick results. As technology advanced, scientific tools for interrogation were introduced. The tests which were conducted made use of certain chemicals which influenced the person to reveal certain information. Various drugs were experimented for this purpose and eventually a breakthrough drugs were identified which could serve as this purpose. These drugs are called truth serum and the test performed is called as Narco therapy or Narco-analysis. Etymologically the term narco-analysis is derived from the Greek word nark 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. Though Horseley is widely acclaimed to have coined the term narco-analysis, the term was popularized in 1922, when Robert House, a Texas obstetrician used the drug scopolamine on two prisoners. Other terms have also been used, such as narco-synthesis, chemical psychoanalysis and psychosomatic narco-analysis.

Instrumentation
The narco analysis test is conducted by mixing 3 grams of Sodium Pentothal or SodiumAmytal dissolved in 3000 ml of distilled water. Narco Test refers to the practice of admin istering barbiturates or certain other chemical substances, most often PentothalSodium, to lower a subject's inhibitions, in the hope that the subject will more freely share information and feelings. A person is able to lie by using his imagination. In the Narco Analysis Test, the subject's inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like state efforts are made to obtain "probative truth" about the crime. Experts inject a subject with hypnotics like Sodium Pentothal or Sodium Amytal under the controlled circumstances of the laboratory. The

dose is dependent on the person's sex, age, health and physical condition. The subject which is put in a state of Hypnotism is not in a position to speak up on his own

but can answer specific but simple questions after giving some suggestions. The subject is not in a position to speak up on his own but can answer specific but simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers. Wrong dose can send the subject into coma or even result in death. The rate of administration is controlled to drive the accused slowly into a hypnotic trance. The effect of the bio-molecules on the bio-activity of an individual is evident as the drug depresses the central nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated by the investigating agencies in the presence of the doctors. The revelations made during this stage are recorded both in video and audio cassettes. The report prepared by the experts is what is used in the process of collecting evidence. This procedure is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.

Drawbacks of Narco-analysis test

1. It requires highly qualified person like a physician to administer the dose. Wrong amount of dosage can send the subject into coma or even result in death. 2. It is always difficult to determine the concentration of dose as it different for different individuals. Also the subject could fake the hypnotic state and tell lies. 3. The test requires consent of the subject. 4. It also raises scientific, legal and ethical questions with reference to its admissibility in court as evidence. 5. The reliability of test is quite questionable. Studies have shown that drugs used in the tests do not fully induce truthful statement and the subject can be conscious enough to provide false answers and mislead the police.

Constitutionality of narco analysis in a broader perspective.

In India the Narco-analysis test is being conducted since 2000 at the Bangalore Forensic science Laboratory. Taking in consideration the legal aspects of Narco-analysis, the constitution of India rarely allows evidence obtained by this test as it is considered as violation of human privacy. This is a direct violation of rights guaranteed to an individual under article 20(3) of Indian Constitution. If a confession from accused is derived from any physical or moral pressure, it should be rejected by the court. But it also says that the accused is bound to answer truthfully all questions put to him by police officer, which could prove the person to be criminal

Violation of Article 21

Narco analysis is conducted by arbitrary injection of narcotic substances and subsequently the subject is compelled to answer the questions posed to him. It is a complicated procedure which has multiple adverse reactions as well as drastic side effect and may even cause even death of the subject. It is also stated by the learned authors that Laryngo spasm may occur after parenteral barbiturate administration. The ability to maintain an airway is essential when ever parenteral barbiturates are used. In some cases barbiturates use is associated with development of exfoliative dermatitis or Stevens-Johnson syndrome. At the least the so called non- invasive procedure involves subjugation of person to unwanted narcotic substances. In State of Punjab v. Mahinder Singh Chawla1 the Apex Court has held that the right to life includes right to health. Subjecting a person to an unsafe scientific test as part of investigation will amount to denial of right to health. Subjecting someone to this test and the procedure and side effects consequently thereafter, stands in complete abrogation of Right to Life, which is the most essential right and the strongest angle of the golden triangle of the Indian Constitution.

AIR 1997 SC 1225

Right to Privacy

The term Right to Privacy is generic term encompassing various rights recognized to be inherent concept or ordered liberty. The right to be left alone on right of a person to be free from unwarranted publicity is Right to Privacy. This Right to Privacy is implicit in the right to life and liberty guaranteed to the citizens of India by article 21 of the constitution of India. None can publish anything covering the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If done so, it will be violating right to privacy of person concerned and would be liable in an action for damages. The supreme court has expanded and expounded new rights flowing throught Article 21. The apex court has upheld a persons right to privacy on a concomitant reading of article 21.The apex court has upheld a persons rights to privacy on to reasonable restriction under article 19 and has o be in accordance with procedure established by law of article 21.Law here refers to the positive law enacted by the legislatures. In the absence of such a law the right to privacy cannot be deprived of due process clause into the Indian constitution after Maneka Gandhi the Supreme court has held that every act of the state has to be tested on the on the ground of fairness & reasonability. The supreme court has through its interpretation incorporated the interrelationship doctrine under Part 3 where in it has held that pt 3 provides an interrogated and intertwined scheme for safeguarding the fundamental rights Furthermore even if we

were to read it only is isolation under article 21 it does not hold good for there is no procedure established by law either. The sections 160-167 of Cr.P.C cannot be understood as law for this purpose for it does not say that the police can compel the accused to speak even on those aspects which would incriminate him, while on the contrary, the secton mandate the investigating authorities to protect the rights of accused privilege against self incrimination. This is not only a case of violation of fundamental rights of petitioner but is also a case of manifest error of law. One of the most fascinating issues arising in the arena of narco analysis test done is the interface with the fundamental rights of the citizens of our country.. Interest in narco analysis test was

revived when it caught the attention of media and critics thereby raising several issues regarding its validity as a scientific tool of investigation and its admissibility in court of law. The test led to the infringement of individual fundamental rights and people started questioning its value as evidence. The issue of using Narco analysis test as a tool of interrogation in India has been widely debated. In India, narco-analysis was first used in 2002 in the Godhra killing 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, enormous 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, upheld the validity 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 use of drugs. Narco analysis was in the public interest 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 narco analysis tests in Gandhinagar in Gujarat.

Right Against Self Incrimination; Article 20(3)

Time and again this Drugged legal process to be legitimate, should be put under rigorous constitutionality tests and with extra caution. Its high time to analyse the constitutional imperatives in the light of Mystery and chemistry of Narco analysis. These tests are blatant violation of right against self incrimination enunciated in Article 20 (3) which saysNo person accused of any offence shall be compelled to be a witness against himself.

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 Accusare that 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.

In US constitution this right is recognised in Fifth Amendment. According Article 14 (3) (g) of the International Covenant on Civil and Political Rights(ICCPR)1966, in the determination of any criminal charge against him, everyone shall be entitled to the minimum guarantee, in full equality, not to be compelled to testify against himself or to confess guilt. As early as in 1954 the Supreme Court in Sharma v Satish2 held that if formal accusation has been made against the person, he can claim immunity from being compelled to make a self incriminating statement. In another landmark decision, Nandani Satpathy v. PL Dani3 the Supreme Court of India has widened the Scope of the Article 20 (3) to include Right to Silence. She claimed that she had a right of silence by virtue of Article 20(3) of the Constitution and Section 161 (2) of Cr. P.C. By the administration of these tests, forcible intrusion into ones mind is being resorted to, thereby nullifying the validity and legitimacy of the Right to Silence. The Apex Court upheld her pleas. The Court further held that the phrase compelled testimony must be read as evidence procured not merely by physical threats or violence but by psychic mental torture, atmospheric pressure,
2 3

AIR 1954 SC 300 AIR 1978 SC 1025

environmental coercion, tiring interrogatives, proximity, overbearing and intermediary methods and like. Since the narco examination does involve forceful intrusion in to the subjects mind, it undeniably comes under the prohibitive scope of the Article.

How ever the Indian Courts seems to be limited the scope of Article 20 (3) in the basis of Minimal Bodily Harm Doctrine. This approach is reflected in the Bombay High Courts verdict in Ramchandra Reddy and Ors. v. State of Maharashtra4, which upheld the legality of the use of P300 or Brain finger-printing, lie-detector test and the use of truth serum or narco analysis. According to Palshikar J. and Kakade J. these tests only involve minimal bodily harm. There is three basic ingredients (a)To be a person accused of an offence (b) compulsion to be witness (c) It must be against himself. Here last two are of concern. To determine whether the information has been obtained out of compulsion and if this information is used against the person betraying this information. Compulsion Compelling would mean "the sate of being compelled" and compel mean:"to cause or bring about by force, threats, or overwhelming pressure." To quality under this, the accused must be compelled to make a statement there has to be use of force to bring about this statement. the ambit of this has grown to such a extent that it includes not just physical deprivation but also mental depravity. The supreme court has inscribed the legal proposition that even inducement of, threat or promise would come under the confines of compulsion under article 20(3). The supreme court also said that compulsion can be metal in nature too. The supreme court clearly said in the case of State of Bombay v. Kathi Kalu oghad that compulsion" is a physical objective act and not the state on mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of statement involuntary and therefore, extorted." The case of Nandini satpathy v. P L dani as discussed briefly in introduction ,held that any mode of pressure, mental or physical, direct or indirect, but sufficiently substantial, applied by policeman for obtaining information from an accused strongly suggestive of guilt, It becomes "compelled testimony", violative of article 20(30).

Cr. WP(c) No. 1924 of 2003

To be a Witness: To be a witness had been held by the Supreme court to mean testimony given by an accused which incriminates him. Testimony contains within its reach and periphery written and oral testimony. however the meaning of testimony, defined by the supreme court, includes only personal knowledge of accused .and if this testimony is compelled the same would offend article 20(3).

Violation of Article 14
Akin this test of transgression seemingly violates right to Equality as enshrined in Article 14 of Constitution. According to Bhagwati J. in EP Royappa v State of Tamil Nadu5 Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within traditional and doctrinal limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies, one belong to rule of law in a republic and while other, to the whim and caprice of absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to the political logic and constitutional law and there for violative of Art 14. Thus subjecting a suspect to arbitrary drug injection technique is infringement of Article 14. Since the procedure prescribed by law has to be fair, just and reasonable, it shall not be fanciful, oppressive and arbitrary, a procedure to be just and fair must embody the principles of natural justice6

5 6

AIR 1974 SC 555 Maneka Gandhi v Union of India (AIR 1978 SC 597)

Some Notable Events & Cases of Narco Analysis in India

In a 2006 judgment (Dinesh Dalmia v State), the Madras High Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said about the accused: "he may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary." In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narco analysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: "No person accused of any offence shall be compelled to be a witness against himself." Statements made under narco analysis are not admissible in evidence. In January 24th, 2008, a bench of Chief Justice K.G. Balakrishnan reserved its ruling after hearing arguments for three days from various parties, including Solicitor General Goolam E. Vahanvati and senior advocate Dushyant Dave, appointed by the bench as amicus curiae to assist the court in the case. Telgi and his accomplices are facing probe by various states' police and other investigative agencies for their alleged criminal acts. These accused people have challenged the legality of the use polygraph, brain mapping and narco-analysis by the investigative agencies to probe the crime. The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra, upheld the legality of the use of P300 or Brain fingerprinting, lie-detector test and the use of truth serum or narco analysis. The court upheld a special court order given by the special court in Pune as mentioned above, allowing the SIT to conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul Karim Telgi. The verdict also said that the evidence procured under the effect of truth serum is also admissible. In the course of the judgment, a distinction was drawn between "statement" (made before a police officer) and "testimony" (made under oath in

court). The Judges, Justice Palshikar and Justice Kakade, said that the lie-detector and the brain mapping tests did not involve any "statement" being made and the statement made under narco analysis was not admissible in evidence during trial. The judgment also held that these tests involve "minimal bodily harm". A court in Kerala recently pronounced that no court order is required to do a narco analysis, Disposing of a petition filed by the CBI seeking permission of the court, the magistrate said that filing this type of a plea would only delay the investigation. The court said nobody could stand in the way of the investigating agency conducting tests recognized as effective investigation tools. When the technicalities of the test itself are not clear and uniform, it becomes difficult to accept the stand taken by the court. In a major setback to investigating agencies, the Supreme Court (SC) ruled compulsory brain mapping, narco-analysis and lie detector tests unconstitutional as they violate individual rights. The Bench of chief KG Balakrishnan, CJ. and RV Raveendran and JM Panchal, JJ. SaidWe 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. Disposing of petitions filed by accused in Maharashtra, Karnataka and Andhra Pradesh, the bench said the tests can be administered to a person only with consent and even then National Human Rights Commission guidelines must be adhered to. The person needs to be assisted by a lawyer, his consent needs to be recorded before a magistrate, and he needs to be told about the implications of his consent and the fact that the information thus collected would not be used against him as evidence in court. But information or material collected with the help of a (voluntary) test can be admitted in court under section 27 of the Evidence Act. Narco analysis and truth serum(M. sivananda reddy SP,Cyber Crime,CID).He given a lots of his pratical experience. Being a Police officer in Karnataka police Mr.Sivananda expressed observation of Narco analysis test. He very clearly mentioned that Narco analysis did not provide starling facts during procedure.

of the Constitutional mandate of Fundamental Rights, which are the most essential and thus, inalienable rights guaranteed via the Constitution. Following is the section which uncovers the story of how this arbitrary test violates essential fundamental rights in broad daylight.

Narco Analysis stands in strict violation Criticism of Narcoanalysis test

Narcoanalysis has been condemned on the basis that it is not accurate all the time. It has been found hat certain subjects made totally false statements. It has been found that certain subjects made totally false statements. It is often unsuccessful in eliciting truth as such it should not been used to compare the statement already given o the police before use of drug. It has been found that a person who has given false information even after administration of drug. It is not much help in case o malingers or evasive, dishonest person. It is very difficult to suggest a correct dose of drug for a particular person. The amount of drug will differ according to will power, mental attitude and physique of the subject. Successful narcoa nalysis 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. Narco analysis test is a restoration of memory which the suspect had forgotten. This test result may be doubtful if the test is used for the purposes of confession of crimes. Suspects of crimes may, under the influence of drugs, deliberately wihhold information or may give untrue account of incident persistely11. Narco analysis is not recommended as an aid to criminal investigation. In medical uses like in treatment of psychiatric disorder the narco analysis may be useful. Unless the test is conducted with the consent of the suspect it should not be used in criminal investigation.

Conclusion
A majorly different viewpoint to this would be to allow Narco Analysis, owing to its complex nature, to bypass this protection. The Right against Self-Incrimination guaranteed in the Constitution of India, though clear in its wording, owing to equally compelling factors such as the States interest in preservation of law and order, has failed to generate a set of concrete workable principles that a court can use to decide and defend the outcomes of particular cases. The maxim Nemo Tenetur Seipsum accusare means no man is bound to accuse himself had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogation of accused persons. A proper analysis of the this protection, and its implications on the system of criminal justice vis--vis providing exceptions to this Right and its implications on individual liberties will demand a very objective understanding of the ethical, scientific and legal aspects of Narco Analysis and Self-Incrimination .Absolute reliability on the findings of Narco-tests cannot be placed. The concerns over the health aspects of such tests raise issues of a different nature altogether; the ethical dimension to this can be mooted to infinity. If it is the legality of admitting narco analysis results that we discuss, then the situation as it stands today clearly indicates that our Supreme Court has not yet delved into a direct juxtaposition of Narco Indian Journal of Medical Ethics, vol. 3, no. 4, October-December 2006, pp. 116-117: Claims of the successs of Narco-tests are based on 2 fundamental assumptions; that lying is a more complex mechanism that telling the truth and is controlled by the cortical part of the brain. Sodium Pentothal affects this part of the brain and thus impairs the ability of the person to lie successfully. A person under the influence of this drug is under a hypnotic state and will elicit truthful responses to carefully worded questions. The flaw lies in the fact that under such a state, a person may not only divulge his fantasies and figments of his imagination but in that this process also works backwards. Information may, through carefully administered settings be put into the mind of the accused which may lead him to believe things that may not be true. Narco analysis in India is a nascent form of investigation. There is an absence of rules and regulations governing the admissibility and plausibility of the same. Certain situations demand such drastic investigative techniques, in the words of Justice Krishna Iyer 39

More than human dignity of the accused involved; the human personality of others inthe society must also be preserved. Thus the values reflected by the privilege are not the sole desideratum; societys interest in of equal weight. Who decides the graveness of a crime and ergo the modus operandi of the investigation process to be followed? This question demands a set of guidelines governing the admissibility of narco analysis. The present situation is functioning in a confused manner but is commendable in so far as, whether or not a person is subjected to such tests, due regard is given to his right against the same; a conclusion is reached only by a balancing act against the overpowering interests of the State and society. An alternative to this could be to decide each case on its merits and leave it to the court of law to decide the admissibility or subjection of a person to such tests. Such an alternative is not feasible in light of need of speedy criminal prosecution. The individual-State balance can be reached only by empowering the State in its endeavour of public order and control of crime and at the same time placing clear anddistinct limits upon such power. A system of accountability and dispense of information giving force the publics Right to Know are indispensible features of such limits. At the same time, standards of quality, secrecy and security need to be maintained. Blending Narco Analysis with Article 20(3) therefore demands immediate workablelaws, failing which it is in constant likelihood of abuse by the State and itsfunctionaries