In the modern times with the advent of technology and increasing knowledge of the same, the criminals are gaining a lot from it. To catch up to the standards of such technically advanced and intelligent criminals, who leave no evidence, narcoanalysis has come as a relief for the investigation agencies. It is the need of the hour to introduce innovative methods to prove the accused guilty.
Narcoanalysis has come forth as a scientific tool for investigation purposes along with other scientific methods like brain mapping , lie detector etc. These tests have been introduced and are a sign of advancement in the field of science but these tests raise legal complications and also questions regarding their reliability. It also raises a lot of doubts as to basic human rights of the people.
Is narcoanalysis a dangerous shortcut to investigation? The method which has been tried, tested and discarded elsewhere is still being used in India. It is often referred to as third degree torture by many and also has been declared as an unreliable science. The truth serum test has gained such importance in the recent past that even our politicians are demanding the use of it against each other . It has attained the status of a magic potion, which if injected can make the murderers reveal where they hid the weapons. The police needs to just take down notes; find the weapon, compile evidence and the case is solved.
Narcoanalysis is increasingly being mainstreamed into investigations, court hearings, and laboratories in India. However, it has serious scientific, legal, and ethical implications. These need to be addressed urgently before the practice spreads further. At the 1977 U.S. Senate hearings on its secret mind-control project, the CIA acknowledged that “no such magic brew as the popular notion of truth serum exists” .
Since law is a living process, it should change according to the changes in society, science, and ethics and so on. The Legal System should imbibe developments and advances that take place in science so far as it does not infringe fundamental legal principles that are for the good of the society. The criminal justice system should be based on just and equitable principles. Hence, to adjudge the legality of the truth serum test is very important.
What is the Narcoanalysis Test ?
It is also known as the truth serum test. It is a process of administering certain chemical substances like sodium pentathol or sodium amylate which results in lowering a person’s inhibition; the investigators hoping that the subject shares what he is feeling without any apprehensions. This term has been coined by Horseley. It was used for the first time in 1922 when Robert House, a Texas obstetrician administered drug scopolamine on two prisoners. Narco testing has been largely discredited in most democratic states like U.S.A & U.K. Hence, Narcoanalysis has large legal implications.
A person can lie using his imaginations. By administering drugs or barbiturates like sodium pentathol or sodium amylate on the subject under controlled laboratory settings, the subject’s inhibitions are lowered. The drugs interfere with the nervous system at the molecular level. Hence the inhibitions and the subject’s ability to think are lowered. The dose delivered is determined taking the subject’s sex, age, health and other physical conditions. The subject is in a state of hypnotism cannot think nor speak at his own will. The subject is capable only of answering specific questions as asked by the interrogator. These efforts are all made to make the accused confess what “the probative truth” is. Studies have shown possibilities of lying under narcoanalysis and hence its reliability is questionable. This type of test is usually not admissible in the courts.
Wrong dose of sodium pentothal can send a person to coma. 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. Interrogation of the subject is then started by the investigation agency but in the presence of doctors. Audio and video recording is done of the revelations. The strength of the facts revealed is further clarified by subjecting the person to polygraph and brain mapping tests.
Procedure to conduct Narcoanalysis
• The accused is brought to FSL to ascertain if the subject is lying using the lie detector test.
• The subject undergoes brain mapping test to discover if he/she is hiding any information.
• The third test is narcoanalysis conducted to find out what information is the accused hiding.
• The accused is taken to the hospital to certify if he/she is fit for the test.
• The accused is bought to an operation theatre and after getting an ‘informed consent form’ signed by him/her, he/she is administered sodium pentothal by an anaesthetist.
• The team conducting the test comprises of a forensic psychologist (the person who interrogates the subject), an anaesthetist and a physician along with the operation theatre assistants. Heart rate and blood pressure of the accused is monitored. The dose of sodium pentothal is usually 5-10 times less than the dose of anaesthesia.
• The accused is asked questions (that are prepared in advance by the investigation officer) by the forensic psychologist. There are 2 set of questions- controlled and specific. Controlled questions are such for which the answers are unquestionable (name, place of birth etc.). The subject is asked specific questions once he/she is in trance.
• The procedure is recorded in audio and video format.
• Duration of the test is based on the number of questions. All through the test the required amount of sodium pentathol is administered to keep the subject in trance.
Narcoanalysis in India
India is among the few democratic and civilised countries in the world to still continue with the use of narcoanalysis. The first usage of the term “Narcoanalysis” in India can be traced back to 1936. Such kind of a test was not used till recent it came to be used for the first time in 2002 in the Godhra Carnage Probe.
Thereafter a catena of cases followed:
• Dinesh Dalmia v. State
• Multi Crore Rupee fake stamp paper case
• Shashi murder case
• Ramchandra Reddy & ors. v. State of Maharashtra
• Noida serial murder case- Nithari Case
• Aarushi Murder Case
• Malegaon Blast Case
• Mumbai Train Blasts
• Arun Bhat’s kidnapping case
The aim of administering drugs like sodium pentathol is to subject the accused to various queries. In India, drugs have gained only marginal acceptance and often provoke the cry of “psychological third degree torture”.
Narcoanalysis and legal aspects
For the investigations of a criminal case in India, the main provision is enshrined in Article 20(3) of the Indian Constitution. It enshrines the privilege against self incrimination. It has its equivalent in the Magna Carta, the Talmund and the law of every civilised country. The privilege against self- incrimination is fundamental cannon of Common law Criminal Jurisprudence.
The US Constitution provides that, “no person shall be compelled to be a witness in any criminal case against him.
In Britain also it is a concrete fundamental principle of common law that no accused shall be compelled to give any evidence, documents etc. which can incriminate him.
The truth serum test has been discarded internationally, as it is violative of the right against self incrimination
Narcoanalysis and the Indian Constitution
The major features of the privilege enshrined in Article 20(3), i.e., right against self incrimination are-
1. The accused to be presumed innocent unless proved guilty beyond reasonable doubt.
2. The burden of proof of proving the accused guilty is on the person alleging the offence.
3. The accused is not required to make any self incriminating statement.
If these privileges are not provided to the accused, then the accused may be tortured so as to entrap him into fatal contradictions. Police officers and lawyers have divergent views regarding the constitutionality of narcoanalysis tests. Some say it is a form of torture. For some it’s just an aid to investigate.
A person is not required to answer questions that may be self incriminating regarding the commission of an offence- whether the offence about which he or she is being questioned, or another offence. This means that while being questioned or interrogated a person doesn’t have to provide information that might indicate that he or she is guilty of a criminal offence. Suspects who are not formally charged are also entitled to this right during interrogation in custody. However, a person is still obliged to answer questions that are not self- incriminatory.
It is a fundamental principal of criminal justice that the accused is assumed innocent till the time he or she is proved guilty beyond reasonable doubts. This is the right of the accused against self incrimination. The burden of proof is totally on the prosecution so that it can base its case on concrete evidence rather than indulge in confusing and intimidating the accused to incriminate them. The right against self incrimination highlights the presumption of innocence of the suspect and hence makes the police and the prosecution to base their case on concrete evidence.
Section 45 of the Indian Evidence Act, 1872 does allow experts’ opinions in certain cases. It says: “When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impression, the opinions upon that point or persons especially skilled in such foreign law, or of science, or art, or as to identity of handwriting or finger impressions are relevant.” However this section is silent on other aspects of forensic evidence that can be admissible in court in criminal proceedings.
Section 161(2) of the Indian Criminal Procedure Code also provides that every person “is bound to answer truthfully all questions, put to him by [a police] officer, other than questions the answers to which, would have a tendency to expose that person to a criminal charge, penalty or forfeiture”.
Hence, Article 20(3) of The Indian Constitution and also Section 161(2) of The Code of Criminal Procedure enshrine THE RIGHT TO SILENCE .
Human rights
The use of the truth serum test in considered as a torture in the international regime. The UN definition of torture clearly implies that the tests performed for obtaining information from suspects, amounts to severe mental suffering or coercion, hence, leading to torture. It has been evidently stated by the UN Committee against Torture that an authorised mode of application of ‘moderate physical pressure’ breaches the convention against torture .
Amnesty International declares the administration of Sodium Pentathol or any other truth serum for procuring information as amounting to torture on the grounds that it is cruel, inhuman and a degraded treatment. Hence, this process should be prohibited. Such a process also outlaws the international standards of interrogation .
The use of evidence obtained under duress has been prohibited by The Human Rights Committee by stating-“the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.’’ The Committee has further stated that, “the law should require that evidence provided by … any… form of compulsion is wholly unacceptable.” Use of drugs has been documented as a form of torture in a number of countries, including Chile and the former Soviet Union. It has also been noted that under US case laws confessions made under the influence of truth serums are also not “voluntary” and are consequently inadmissible as evidence.
India has still not ratified The UN Convention against Torture, though it has signed the same. Torture is not expressly prohibited under the Indian Constitution. The only implied protection is under Article 21 of the Indian Constitution. Article 21 includes within its purview the issue of narcoanalysis as by invading the body and the mind, the test constitutes invasion of privacy .
Divergent views on its Admissibility
Lawyers, media and doctors have a divided opinion on the admissibility of narcoanalysis test. For some it is a very vital mode of investigating into the probative truth, and on the other hand it raises questions regarding basic human rights of a person and is termed as third degree torture.
According to the valuable views of Dr. Amar Jesani , “narcoanalysis as an investigational or therapeutic procedure in a medical and mental health setting is different from its forensic application. In the former, it is used for helping, caring and treating a patient. In the latter, the person undergoing the test is not a patient but a healthy human being and the procedure is undertaken to ‘help’ him self-incriminate. It is pharmalogical torture. It is also psychological torture. Even if it is admitted as a valid investigative tool it does not make it less or different from torture. In systematic torture, psychological torture was always conducted using the best knowledge of mental health available. Involvement of doctors in narcoanalysis is not only necessary but also compulsory. This is a perversion of medical ethics and noble values of medical practice” .
According to Dr. B. M. Mohan , “if narcoanalysis is torture then ask psychiatrists to stop using it for psychiatric purposes. Where is the question of torture when the person feels relieved? Even in the Criminal Procedure Code, there is a provision to apply reasonable force. If the involvement of doctors in narcoanalysis was unethical then why is it still practiced for psychiatric purposes? Even today drugs are being used for diagnosis of mental illness. Narcoanalysis as far as psychiatric practices are concerned, has been validated a long time ago. What narcoanalysis conceptualised for psychiatric practices is different from what FSL has conceptualised for probative truth. What need to be validated is how FSL is handling neurosis and what the methods for handling a person under trance are.”
In the Aarushi murder case, the CBI has involved only in narcoanalysis test and kept moving the suspects from Delhi to Bangalore FSL . Then media said that the narcoanalyst from FSL was brought to Delhi for conducting the tests on the suspects. With the introduction of narcoanalysis for investigation, the police are forgetting their job of basic investigation through traditional, time tested methods. The claims of FSL are a gigantic fraud on the nation. Their methods are not evaluated, neither scientifically or ethically. There is also no sanction from the government. Many High Courts have held that the test does not violate the right against self-incrimination. This decision is certainly wrong as the courts are not appraised of the correct view. Narcoanalysis is rarely used for therapeutic purposes today. The reliability of the practice has been questioned by leading psychiatric and forensic experts. It has been characterised as an unscientific, third-degree method of investigation .
Human rights activists say that the test is another form of torture. The process of administering sodium pentathol satisfies the requirements of almost all the definitions of torture .
UNITED NATIONS definition of torture has 4 major components-
? Producing physical/mental suffering and is degrading.
? Intentionally inflicted.
? Performed to retrieve information and confessions.
? Inflicted by any official.
Narcoanalysis satisfies all 4 requirements. The World Medical Association, of which the Indian Medical Association is also a member, declared in its 1975 Tokyo Declaration that doctors are prohibited from participating or assisting in any form of torture.
Conclusion
1. Narcoanalysis is an unreliable science. Surveys show that although difficult yet there are possibilities of lying and fantasising under the influence of the truth serum. A criminal under the influence of barbiturates can deliberately withhold information, give untruthful answers and may also confess crimes that he has not committed.
2. Administering a wrong dose of barbiturates can send the person into coma and also the capacity of the brain is lowered.
3. It also violates the basic human rights of an individual as it is torturous and also against the right to liberty as it intervenes with one’s mental processes.
4. If a criminal is an abuser of drugs, then the test would have no effect on him he or she can also mislead evidence.
5. Ever since the advent of the truth serum test the police has shunned from carrying out any preliminary investigations and directly approaches the forensic lab for the test. The State police departments are responsible for generating demand for the process. The Superintendent of Police or the Deputy Inspector General handling a case usually makes the decision to conduct narcoanalysis. A high-ranking official in the Karnataka Police told The Hindu that police departments in India have poor skills when it comes to collection, collation, and presentation of evidence before the courts . Hence, if there is a lot of pressure on the police department with regard to solving a case, the suspects are sent in for these tests, which merely just show that something has been done about the case.
Hence, such a test violates Article 20(3) of The Indian Constitution as the suspect who is under the influence of the barbiturates can self incriminate. The consent of the suspect given for such a test is forceful. Although many courts and expert opinions have held that there is some use of the test of narcoanalysis, yet by all means narcoanalysis is an unreliable science. The two forensic labs in India boasting of their success rates must also prove that it’s a sound science. In the absence of proof, narcoanalysis must necessarily be suspended, especially given its ethical and human rights implications.
The criminal justice system needs to secure justice by seeking substantial truth through proof and care being the 1st obligation. It must preserve the dignity of the individual and their ends must validate the means. Freedom of the individual cannot be subjected to improper means, however justified the ends are. Hence, there exists a need to replace the third degree methods by better refined and sophisticated techniques.
Footnotes
Also known as the P300 Test. This test does not consist of any questions. The subject is attached to sensors and is seated in front of a computer. He is then shown different kind of images, pictures and made to hear different sounds. The sensors monitor electrical activity in the brain and registers P300 waves which are generated only if the subject has some connection with the stimulus.
Also known as the Polygraph Test. It is one of the 1st scientific methods to be used by the investigation authorities for the purpose of lie detection. It is conducted with the help of a machine which records the blood pressure, pulse rate, respiration and muscle movement of the accused. A set of questions is prepared by the examiner depending upon the relevant facts of the case. The reactions of the subject to the questions are measured to a baseline, which is established by asking questions whose answers are known to the investigators. The baseline helps when the subject tries to lie which leads to behavioral changes, which is exposed by the sensors and graph patterns.
In 2006, Karnataka Congress leader H. Vishwanath suggested that Chief Minister H.D. Kumaraswamy and his colleagues undergo narcoanalysis in the Chenamma Trust bribery case.
Narcoanalysis and some hard facts, Sriram Lakshman: http://www.hinduonnet.com/fline/fl2409/stories/20070518002109700.htm
Epistemologically, the term Narcoanalysis is derived from the Greek word narkç meaning “anaesthesia” or “torpor”.
According to Webster’s Dictionary, the word narcoanalysis had its origin in the 20th century and is coined from ‘narco-’ + ‘analysis’. It means psychoanalysis using drugs to induce a state akin to sleep.
According to the Black’s Law Dictionary, 8th Edition, 2004, “Narcoanalysis is the process of injecting a ‘truth serum’ drug into a patient to induce semi-consciousness and then interrogating the patient. The process has been used to enhance the memory of the witness.”
The Forensic Science Laboratory in Bangalore is the first center in India which conducts the Brain-mapping or Brain-finger printing tests. Also narcoanalysis is conducted here.
(2006) 1 MLJ 411 (Madras High Court Judgement) It is usually referred to cite that narcoanalysis is not testimony by compulsion. The court held that the accused might be taken to the lab without his will but the facts revealed during the test are voluntary. The High Courts of Bombay, Gujarat and Kerela have also upheld the same in a variety of other cases.
Similar judgements held in Smt Selvi v. Karnataka and State of Bombay v. Kathikalu A.I.R. 1961.
In 2004, the Bombay High Court ruled that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination.
Court allows narcoanalysis.
The Bombay High Court upheld the legality of the use of P300 or Brain Mapping and narcoanalysis test. It was also declared that evidence procured under the effect of narcoanalysis test is also admissible. However, defence lawyers and human rights activists viewed that narcoanalysis test was a very primitive form of investigation and third degree treatment, and there were legal lapses in interrogation with the aid of drugs.
Narcoanalysis of Moninder Singh Pandher, started on January 09, who was the prime accused in the Noida serial murder case. It was conducted at the Directorate of Forensic Laboratory. Pandher and Koli have been accused of serial killing of women and children in Nithari village, in Noida, Uttar Pradesh. The Noida police had brought Pandher and his servant Surendra Koli to DFS on January 5 for forensic tests.
5th Amendment
In USA, in the case of Townsend v. Sain [372 US 293 (1963)], US v. Solomon [753 F.2d.1522 (9th Cir(1985) 1985].
The principle of immunity from self incriminating evidence is founded on the presumption of innocence, the maxim Nemo tenetur seipsum accusare had its origin in a protest against inquisitorial and manifestly unjust methods of interrogating accused persons held in Brown v. Walker (1896) 161 US 596.
“Handbook of Human Rights and Criminal Justice in India-System and Procedure” by South Asia Human
Rights Document’s Centre, Pg No. 40-41.
Ratalal & Dheerajlal, The Law of Evidence, 22nd Edn. (2006), Wadhwa Nagpur.
Also held in Nandini Sathpathy v. P.L.Dani, AIR 1978 SC 1025.
The UN Convention Against Torture defines torture as ‘Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.’
Article 15 of the Convention against Torture obliges the state parties to ‘’ensure that any statement which is established to have been made as the result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’’
Principle 21 of the Body of Principles states: ‘’No detained person while being interrogated shall be subjected to violence, threats or methods of interrogation which impair his capacity or decision or his judgement.’’
Townsend v. Sain [372 US 293 (1963)] it was held that the petitioner’s confession was constitutionally inadmissible if it was adduced by the police questioning, during a period when the petitioner’s will was overborne by a drug having the property of a truth serum.
US v. Solomon [753 F.2d.1522 (9th Cir.1985) 1985], which directly debated the issue of narcoanalysis; the expert opinion given to the court established that “truth serum is now generally accepted investigative technique”. The experts said: “Adequate safeguarding against unreliability is possible. However narcoanalysis does not reliably induce truthful statements”.
In 1989, the New Jersey Supreme Court in State v. Pitts prohibited the use of sodium Amytal narcoanalysis because the results of the interview were not considered scientifically reliable.
‘No person shall be deprived of his life or personal liberty except according to procedure established by law’.
The test intrudes into the mental process of the suspect, who has no control over himself. There need to be strict safeguards to maintain confidentiality of the revelations made during the test as privacy can be violated only ‘by procedures of law’. No such safeguard exists in India. Hence, such a test without the consent of the suspect violates right to privacy. But, Narco Analysis tends not to be seen as a form of torture in India because there is no specific definition of torture.
However, in Rojo George v. Deputy Superintendent of Police, the Kerala High Court disagreed with this view, holding that narcoanalysis testing does not amount to deprivation of personal liberty or intrusion into privacy”. The Court also rejected the contention that narcoanalysis can be potentially hazardous and can violate the right to health.
“Rape of the Mind”: Source “The Week” magazine, September 21, 2008.
Editor, Indian Journal of Medical Ethics: Source “The Week” magazine, September 21, 2008.
Two experts from National Institute of Mental Health and Neurosciences, Bangalore (NIMHANS) who were interviewed by The Hindu said that use of sodium pentothal is conducted only in the rarest cases, partly because there is no guarantee that the drug will elicit factually accurate information.
Director, FSL, Bangalore: Source “The Week” magazine, September 21, 2008.
Stamp scam accused Abdul Karim Telgi was asking ‘put me again on narcoanalysis’.
Supra note 6
Dr. P. Chandra Sekharan, the highly regarded former Director of the Forensic Sciences Department of Tamil Nadu.
The Inter American Convention to Prevent and Punish Torture expressly defines torture as including “the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.”
The Hindu, Online edition of India’s National Newspaper, Wednesday, May 02, 2007.
by Ankita Patnaik and Apurv Narula
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