Constitutionality of Narco analysis

The use of narco analysis is increasing with time. The judiciary, the Governments has showed their support to the test. But many a times a question that crops up in relation to narco analysis is that whether narco analysis is constitutional in the light of self incrimination. As science has outpaced the development of law there is unavoidable complexity regarding what can be admitted as evidence in court.[1] Narco analysis is one such scientific development that has become an increasingly common term in India.

In the case of US v. Solomon [2] there was a detailed discussion on the topic of narco analysis. In this case the expert opinion given to the court established that truth serum is generally accepted as an investigative technique.

The decision to conduct narco analysis is usually made by the Superintendent of Police or the Deputy Inspector-General handling a case.

It need not be said that prevention of crime and punishment for the crime are the duties of the State. Fetters on these duties can be put only in extreme cases where the protection of fundamental rights weigh more than the fundamental duty caste on the State[3] moreover every person is required to furnish information regarding offences.[4]

 

Protection against self incrimination was instrument for the protection of the innocent and not intended for the acquittal of the guilty.[5] The framers of the Bill of Rights believed the rights of society were paramount to the rights of the criminal. Believing in the same principle in a spate of high-profile cases, such as those of the Nithari killers, the Mumbai train blasts, Arushi Murder case, Malegaon blasts and the most recent Mumbai blasts case suspects have been made to undergo Narco Analysis, drugged with the sodium pentothal.

 

Narco analysis is carried out only after a detailed medical examination of the accused. If the accused is found medically fit to undergo the procedure, then only will it be done, otherwise not. However it has been argued in various cases that sodium Pentathol or Sodium Amytal is a barbiturate[6] thus has ill effects on the body.[7] But the judiciary and state government seem to have supported this practice. Furthering its support the Supreme Court has held that the right to life includes right to health but Subjecting a person to a scientific test as part of investigation will not amount to denial of health. Therefore it will not amount to denial of reasonable and just procedure[8].

The term narco analysis was introduced in 1936 for the use of narcotics to induce a trance like state wherein the person is subjected to various queries. The narco analysis test is based on the principle that a person is able to lie using his imagination and, under the influence of certain barbiturates, this capacity for imagination is blocked or neutralized by leading the person into a semiconscious state.[9] It becomes difficult for the person to lie and his answers would be restricted to facts he is aware of.[10] The use of such drug in police work or interrogation is similar to the accepted psychiatric practice of narco analysis and the only difference in the two procedures is the difference in the objectives[11].

The supremacy of the fundamental rights should be maintained to further the aim of the constitution.[12]In the case Madras v. Champakam Dorairajan[13] the Supreme Court observed that “The chapter on fundamental rights is sacrosanct and not liable to be abridged by legislative or executive act or orders, except to the extent provided in the appropriate article in part III.” The right guaranteed under Article 20(3) of the Constitution is in the protection of human rights and dignities, which may need consideration in the light of other equally important provisions of the Constitution.

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.[14] In English law, this principle of protection against self-incrimination had a historical origin. It resulted from a feeling of revulsion against the inquisitorial methods adopted and the barbarous sentences imposed, by the Court of Star Chamber, in the exercise of its criminal jurisdiction.[15] The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony, which might tend to show that he himself had committed a crime.[16]According to Wigmore on Evidence, stating certain paragraphs of Stephen’s History of the Criminal Law of England By the administration of narco analysis, the accused is forced to confess thereby nullifying the validity and legitimacy of the right to silence. The protection of accused against narco analysis promotes active investigation from external sources to find out the truth and proof of alleged or suspected crime instead of extortion of confessions on unverified suspicion.[17]

 

As far as the Indian law regarding this is concerned the protection against self-incrimination continues to be more or less same as in the English common law.[18] In India Article 20(3) and section 161(2) of Code of Criminal Procedure protect the accused from self-incrimination. Article 20(3) and section 161(2) code of criminal procedure states, “No person accused of an offence shall be compelled to be a witness against himself” and “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” respectively. In the case of Nandini Sathpathy v. P.L.Dan[19], it was held that no one could forcibly extract statements from the accused that have the right to keep silent during the course of interrogation or investigation. However art 20(3) can be waived of by a person himself.[20]

The idea behind the protection against self incrimination is to encourage a free atmosphere in which the accused can be persuaded to come forward to furnish evidence in courts and be of substantial help in elucidating truth in a case, with reference to material within their knowledge and in their possession.[21] Anything caused, by any kind of threat or inducement by a person directed towards the accused or likely to be accused of any offence, which causes him to act involuntarily and further the case against himself in any prosecution against him or which results or is likely to result in the incrimination of that person qua any offence, is violativeS of the fundamental right guaranteed under clause (3) of Article 20 of the Constitution of India.[22] Involuntary is defined as an admission, especially by an individual who has been accused of a crime that is not freely offered but rather is precipitated by a threat, fear, torture, or a promise.[23]Under narco analysis there are no such ingredients. In narco analysis only the person’s imagination is curtailed by drugs forcing him to answer truthfully. Freedom to tell lies is not within the protection of this clause.[24]

To come within the inhibition of the Article 20 clause 3, the statement given by the accused must fulfill all the following conditions. If only one of these facts and not the other is established, the requirements of Art. 20(3) will not be fulfilled[25].The conditions are that the statement should be given:

 

(1) By a person accused of an offence[26]

The person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused any time after the statement has been made.[27]Accusation is ordinarily brought into existence by lodging of an F.I.R. or a formal complaint to the appropriate authority or court against the specific individual, accusing him of the commission of a crime which, in the normal course, would result in his prosecution.[28]It needs however to be affirmed that the protection against what is called testimonial compulsion under Art. 20(3) are against proceedings in Court.[29] The incriminating statements procured during narco analysis are not used in the court of law.[30]Moreover it is a scientific test conducted by a team of scientists and does not amount to custodial interrogation by Police.[31] 

(2) Made under compulsion,[32]

Compelling a person to undergo narco-analysis will amount violation of the constitutional protection given to a citizen under Article 20(3) of the Indian Constitution.[33]

If in the process of obtaining information, i.e. collection of evidence during investigation, any legal or fundamental right of the accused is infringed or violated, nothing prevents them from resorting to the safeguards provided to them under various laws. But that cannot be a ground to refuse to answer during investigation.[34]

The phrase compelled testimony is read as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like.[35]In the case Kathi Kalu Oghad [36]wherein the Supreme Court has held that compulsion in the context must mean what in English law is called duress. In the Dictionary of English Law by Earl Jowitt, duress is explained as follows: “Duress is where a man is compelled to do an act by injury, beating or unlawful imprisonment (sometimes called duress in strict sense) or by the threat of being killed, suffering some grievous bodily harm, or being unlawfully imprisoned (sometimes called menace, or duress per mines). Duress also includes threatening, beating or imprisonment of the wife, parent or child of a person”. The compulsion in this sense is a physical objective act and not the state of 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 the statement involuntary and, therefore, extorted. In narco analysis the accused is injected with Sodium Pentathol or Sodium Amytal. After that the accused is subjected to interrogation by the investigating agencies in the presence of expert doctors. There is no kind of physical force used on the accused.

(3) The statement so compulsorily made (Coercive or compelling) [37] or evoked (to bring to mind or recollection or to re-create imaginatively) [38] or provoked (To give rise or to bring out deliberately) [39] is incriminating to the accused or maker thereof.[40]

Statement made or information given by an accused will be either exculpatory or inculpatory and it is only inculpatory statement which is hit by Article 20(3) of the Constitution. Whether the accused has made an inculpatory or exculpatory statement will be known only after the test is conducted and not before. So, it becomes premature to say whether the nature of statement or information, which the accused gives under narco-analysis Test.[41]

(4) Result of such statement must be a testimony with these ingredients. [42]

In the case Pakhar Singh and anr. v. The State [43]“The word ‘witness’ must be understood in its natural sense, i.e. as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony”. The statement or information given by the accused to the police during investigation is evidence.[44]

Statements made under narco analysis do not fulfill the above three ingredients at the same time thus narco analysis should be outside the purview of art 20(3).

In the case State v. Pitts[45] the use of Sodium Amytal in narco analysis was prohibited because the results of the interview were not considered scientifically reliable. The court opined that subjects are susceptible to filling in gaps in stories with fabricated detail (hyper amnesia), or believing in false events (memory hardening), and hypnotic recall, where thoughts of non-existent events become embedded in the memory. Therefore the test results should not be regarded as conclusive evidence there should be a need of corroborating statements made during narco analysis with other evidences that have been procured.

It has become absolutely necessary for state governments to work with the central authorities to enhance the investigative capabilities of their police departments. The Indian criminal justice system has an alarmingly low conviction rate and the situation needs to be rectified with emphasis on real science and state-of-the-art technology. The Central government must make a clear policy stand on narco analysis. The legal system should imbibe developments and advances that take place in science as long as they do not violate fundamental legal principles and are for the good of the society. The criminal justice system should be based on just and equitable principles. Nacro analysis for criminal interrogation has proved to be a valuable technique, which profoundly affects both the innocent and the guilty and thereby hasten the cause of justice which has seen in various cases like the Aarushi murder case, The Malegaon blasts case, Nithari killings case, Telgi scam and Mumbai blasts case.

In 2004, the Bombay High Court ruled in the multi-corer fake stamp paper case that Statements made under narco analysis are not admissible in evidence however; recoveries resulting from such drugged interviews are admissible as corroborative evidence.[46] In this case, The Narco analysis test submitted an immense amount of information but doubts were raised about its value as evidence. Abdul Karim Telgi the accused, under went narco analysis in Bangalore in order to aid investigation and facilitate the collection of evidence. The Karnataka Forensic Science Laboratory (KFSL) in Bangalore conducted a polygraph test, brain mapping, and a narco analysis procedure.

The Bombay High Court recently in an important verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra[47], the bench upheld the legality of the use of P300 or brain finger-printing, lie-detector test and the use of truth serum or narco analysis. It also upheld the admissibility of evidence procured under the effect of truth serum. The judgment also held that these tests involve minimal bodily harm. Surender Koli, main accused in the Nithari case, was brought to forensic science laboratory in Gandhinagar in January 2007 for Narco analysis. Polygraph test was conducted on Moninder Singh Pandher and his servant Surendra Koli, accused of serial killing of women and children in Nithari, to ascertain the veracity of their statements made during their custodial interrogation. Various confessional statements were made by the accused under the effect of the drug, he could remember the names of the females he had murdered and revealed his urge to rape them after murdering them.

Its time for our legislature and judiciary to act immediately for the sake of justice and fair procedure to bring narco analysis within the scope of article 20(3) of the Indian Constitution. The Supreme Court must urgently clarify the stand on whether statements made during narco analysis have evidentiary value or not.

 

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