Clause 3 of Article 20 embodies the principle of protection against compulsion of self incrimination i.e. no person accused of an offence shall be compelled to be a witness against himself. This principle is one of the fundamental canons of the British system of criminal jurisprudence and which has been adopted by the American system and incorporated in the Federal Constitution. On analysis, this provision will be found to contain the following components:
It is a right available to a person “accused of an offence”;
It is a protection against such “compulsion” “to be a witness”;
It is a protection against such “compulsion” resulting in his giving evidence against himself.
All the three ingredients must necessarily coexist before the protection of Art. 20(3) can be claimed. If any of these ingredients is missing, Art. 20(3) cannot be invoked[1].
In the case Nandini Sathpathy V.P.L. Dani[2], the Supreme Court considered the legal basis of the police practice of interrogating suspects in the view of constitutional and legal safeguards available to a person against the unjust interrogations. In this case Mrs. Sathpathy, the accused, who was a suspect and yet not accused, was brought into the police custody in regards of the corruption charges levied against her. On her refusal to answer the questions which were put before her, she was charged with an offence under Section 179 of IPC. It was argued that her refusal to answer was justified on grounds of Article 20(3) of the Constitution and Section 161(2) of the CrPC, 1973. The Supreme Court held that the expression “any person supposed to be acquainted with the facts and circumstances of the case” included an accused person who fills that role because the police suppose him to have committed the crime and, must, therefore, be familiar with the facts. The Court further held that the expression ‘accused of an offence’ includes a person formally brought into the police diary as an accused person but it also includes a suspect.
The Article 20(3) of the Constitution is against the compulsion ‘to be a witness’ which means making of oral or written statements in or out of court by a person accused of an offence. In other words, it means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in a court otherwise. In the case State of Bombay V. Kathi Kalu Oghad[3], the question raised was “whether an accused person furnishing evidence, when he is giving his specimen handwriting or impressions of his fingers, or palm or foot? It appeared that he is giving the evidence within the meaning of S. 9 and S. 11 of the Evidence Act. Just as an accused person is furnishing evidence and by doing so, is being a witness, when he makes a statement that he did something, or saw something, so also he is giving evidence and so is being a “witness”, when he produces a letter the contents of which are relevant under S. 10, or is producing the plan of a house where a burglary has been committed, or is giving his specimen handwriting or impressions of his finger, palm or foot. It has to be noticed however that Art. 20 (3) does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself. The question that arises therefore is: Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot? The Court held that the person is not furnishing evidence against himself in such a case.
There are instances where the police has brought the evidence against the accused without any duress. In the case R.M. Malkani V. State of Maharashtra[4], it was held that, the tape recorded conversation is admissible provided that the conversation is relevant to the matters in issue, that there is identification of the voice and that the accuracy of the conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under S. 8 of the Indian Evidence Act, 1872. It is also comparable to a photograph of a relevant incident. The conversation is therefore a relevant fact and is admissible under S. 7 of the Evidence Act.
When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. The fact that tape recorded conversation can be altered is also borne in mind by the Court while admitting it in evidence.
It was held that the tape recorded conversation was admissible in evidence. There was no unlawful or irregular method in obtaining the recording of the conversation. There was no violation of Art. 20(3) of the Constitution.
In the case Mohd. Dastagir V. State of Madras[5], the appellant had gone to the bungalow of the Dy. Superintendent of Police to offer him a bribe contained in a close envelop. The police officer threw the envelop at the appellant who took it up. Soon thereafter, he was asked by the police to produce the envelop and he took out from his pocket some currency notes which were seized by the police. The appellant pleaded that the currency notes seized by the police should not be allowed to be produced as that would amount to the admission of compelled evidence. The Court held that clause 3 did not apply firstly because no duress was exercised against the accused and secondly because at the time the currency notes were seized he was not an accused.
The search for effective aids to interrogation is probably as old as man’s need to obtain information from an uncooperative source and as persistent as his impatience to shortcut any tortuous path. Development of new tools of investigation has led to the emergence of scientific tools of interrogation like the Narco analysis test. Such tests are a result of advances in science but they often raise doubts regarding basic human rights and also about their reliability. Legal questions are raised about their validity with some upholding its validity in the light of legal principles and others rejecting it as a blatant violation of constitutional provisions.
Early in the 20th century, physicians began to employ scopolamine along with morphine and chloroform, to induce a state of “twilight sleep” during childbirth. Scopolamine was known to produce sedation and drowsiness, confusion and disorientation, in coordination and amnesia for events experienced during intoxication.
In 1922 it occurred to Robert House, a Dallas Texas Obstetrician that a similar technique might be employed in the interrogation of suspected criminals, and he arranged to interview under scopolamine two prisoners in the Dallas county jail whose guilt seemed clearly confirmed. Under the drug, both men denied the charges on which they were held; and both, upon trial, were found not guilty. Thus, Robert House concluded that a patient under the influence of scopolamine “cannot create a lie… and there is no power to think or reason”. His experiment and this conclusion attracted wide attention, and the idea of a truth drug was thus launched on the public consciousness. The phrase “Truth Serum” is believed to have appeared first, in the news report of Robert House’s experiment the Los Angeles Record, sometime in 1922. Robert House thereafter came to be known as the ‘Father of Truth Serum’.
Recently police officials in some countries including India have turned to drugs for assistance in extracting confessions from accused persons, drugs, which are presumed to relax the individual’s defences to the point that he unknowingly reveals truths, he has been trying to conceal. In India, where drugs have gained only marginal acceptance in police work, their use has provoked cries of “psychological third degree” and precipitated medico-legal controversies on one hand and has proved to be a scientific method of interrogation on the other hand. This technique of using drugs for the purpose of investigation is called as “Narco analysis Test” also known as the “Truth Serum test”. According to Black’s Law Dictionary, the word Narco-analysis 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.
With the crime graph climbing up a steep rate, the police interrogation techniques play a vital role in extracting the truth from the suspect. Some of the commonly used interrogation methods include the use of hypnosis, truth serum, voice analysis, fingerprint testing, handwriting evidence and DNA analysis. The scientific tools of interrogation namely- the Lie detector or the Polygraph test, the P300 or the Brain Mapping test and the Narco-analysis or the Truth Serum test are the main three tests that have recently been developed for extracting confessions. These psychoanalytical tests are also used to interpret the behaviour of the criminal (or the suspect) and corroborate the investigating officers’ observations.
1) NARCOANALYSIS OR TRUTH SERUM TEST:
The term Narco-analysis was introduced in 1936 for the use of narcotics to induce the subject under the influence of the drug, so that he talks freely and is purportedly deprived of his self-control and will power to manipulate his answers. The underlying theory is that a person is able to lie by using his imagination as the answers are involuntary and against his will. In the Narco-analysis test, the subject is not in a position to speak up on his own but can answer specific and simple questions.
Truth serums are no serum at all. Most commonly used drug for truth serum test is an anesthetic and sedative drug. Sodium Pentothal which when administered intravenously can make a person garrulous and confessional. The Narco-analysis test is conducted by mixing 3 grams of Sodium Pentothal or Sodium Amytal dissolved in 3000 ml of distilled water. Depending on the person’s sex, age, health and physical condition, this mixture is administered intravenously along with 10% of dextrose over a period of 3 hours with the help of an anaesthetist. 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.
2) POLYGRAPH OR LIE DETECTOR TEST:
It is an examination, which is based on an assumption that there is an interaction between the mind and body and is conducted by various components or the sensors of a polygraph machine, which are attached to the body of the person who is interrogated by the expert. A clinical or criminal psychologist prepares a set of test questions depending upon the relevant information about the case provided by the investigating officer, such as the criminal charges against the person and statements made by the suspect. The subject is questioned and the reactions are measured. Lying by a suspect is accompanied by specific, perceptible physiological and behavioural changes and the sensors and a wave pattern in the graph expose this. Deviation from the baseline (established by asking questions whose answers the investigators know) is taken as a sign of lie. All these reactions are corroborated with other evidence gathered.
3) P300 OR THE BRAIN MAPPING TEST:
This test was developed and patented in 1995 by neurologist Dr. Lawrence A. Farwell, Director and Chief Scientist “Brain Wave Science”, IOWA. In this method, called the “Brain-wave finger printing”; the accused is first interviewed and interrogated to find out whether he is concealing any information. Then sensors are attached to the subject’s head and the person is seated before a computer monitor. He is then shown certain images or made to hear certain sounds. The sensors monitor electrical activity in the brain and register P300 waves, which are generated only if the subject has connection with the stimulus i.e. picture or sound. Dr. Farwell has published that a MERMER (Memory and Encoding Related Multifaceted Electro Encephalographic Response) is initiated in the accused when his brain recognizes noteworthy information pertaining to the crime. These stimuli are called the “target stimuli”. The Forensic Science Laboratory in Bangalore is the first centre in India which conducts the Brain-mapping or Brain-finger printing test. In USA, the FBI has been making use of “Brain mapping technique” to convict criminals.
The uses of Narco-analysis drugs are two fold - they are used as “truth drugs” in police work and also used in the accepted psychiatric practice of Narco-analysis. The difference in the two procedures lies in their different objectives. The police investigation is concerned with empirical truth that may be used against the suspect, and therefore almost solely with probative truth. The usefulness of the suspect’s revelations depends ultimately on their acceptance in evidence by a court of law. The psychiatrist, on the other hand, using the same “truth drugs” in diagnosis and treatment of the mentally ill, is primarily concerned with psychological truth rather than empirical fact.
Like other methods of interrogation, the criminal assessment test of Narco-analysis also has its pros and cons. The police believe that Narco-analysis as a scientific tool of interrogation helps a lot in crime prevention and detection. It also helps in getting clinching evidence and is an effective and non-hazardous method of inducing hypnosis. According to the police, if a criminal was put under Narco-analysis then he would reveal about the crime committed, where he had hidden the weapons used in committing the crime and why did he do it? This would help in getting the motive for the crime and collect other evidence needed for prosecution. The police in order to find out the truth and solve the mysteries of the crime must use the advances in science. It is a better option than third degree torture.
There are certain drawbacks of the Narco-analysis test. The person to administer them has to be a highly qualified physician. It is always difficult to determine the correct dose of the drug, which varies according to the physical constitution of the subject, but also his mental attitude and will power. A wrong dose can send a subject into coma or even cause death thus resulting in legal complications.
The main provision regarding crime investigation and trial in the Indian
Constitution is Art. 20(3). It deals with the privilege against self incrimination.
It has its equivalents in the Magna Carta, the Talmud, and the law of almost every civilized country.
USA: The Fifth Amendment of the US Constitution provides inter alia:
“No person…shall be compelled in any criminal case, to be a witness against himself”.
BRITAIN: It is a fundamental principle of the common law that a person accused of an offence shall not be compelled to discover documents or objects, which incriminate him. The privilege is based on the policy of encouraging persons to come forward with evidence in courts of justice, by protecting them, as far as possible, from injury, or needless annoyance, in consequence of so doing.
INDIA: The privilege against `self incrimination is a fundamental canon of Common law criminal jurisprudence.
The characteristic features of this principle are-
The accused is presumed to be innocent,
That it is for the prosecution to establish his guilt, and
That the accused need not make any statement against his will.
These propositions emanate from an apprehension that if compulsory examination of an accused were to be permitted then force and torture may be used against him to entrap him into fatal contradictions. The privilege against self-incrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice.
The application of Narco-analysis test involves the fundamental question pertaining to judicial matters and also to Human Rights. The legal position of applying this technique as an investigative aid raises genuine issues like encroachment of an individual’s rights, liberties and freedom. Subjecting the accused to undergo the test, as has been done by the investigative agencies in India, is considered by many as a blatant violation of Art. 20(3) of the Constitution. 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’. If the confession from the accused is derived from any physical or moral compulsion it should stand to be rejected by the court. The main issue thus is the question of its admissibility as a scientific technique in investigations and its ultimate admissibility in court as forensic evidence.
Section 45 of the Indian Evidence Act, 1872 does allow experts’ opinions in certain cases. It reads:
“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 specially skilled in such foreign law, or of science, or art, or as to identity of handwriting or finger impressions are relevant[6].”
It was held in Dinesh Dalmia V. State[7], and Rojo George[8], that it would be premature and unjust to exclude the results of such tests before they are even conducted, on the ground that they are not credible. As long as they are conducted in the presence of an expert they are held to be permissible. Additionally these tests are audio and videotaped; therefore the Court gets a fair look at as to how the experts arrive upon their conclusion. In Smt. Selvi[9], the result of brain-fingerprinting test prepared by an expert was admitted based upon which the permission for a Narco-analysis test was also granted. It is well settled law that though the opinions of such experts are not binding on the Courts, it is the duty of an expert to furnish the Court with the necessary materials so that the Court, though not an expert, may form their own judgement upon those materials[10].
However , the evidence from such tests are only sought to be used in further investigation and to corroborate as well as be corroborated by other evidence as contemplated by Section 27 of the Evidence Act, since expert’s opinion is seldom accepted as sole evidence.[11]
The right against forced self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal Procedure (CrPC) and the Indian Constitution.
In the CrPC, the legislature has guarded a citizen’s right against self incrimination. S.161 (2) of the Code of Criminal Procedure states 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”.
It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy v. P.L.Dani[12], no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence.
Moreover, the tests like Narco-analysis are not considered very reliable. Studies done by various medical associations in the US adhere to the view that truth serums do not induce truthful statements and subjects in such a condition of trance under the truth serum may give false or misleading answers.
In USA, in the case of Townsend v. Sain[13], 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. In another famous case of US v. Solomon[14], which directly debated the issue of Narco-analysis, 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 “Narco-analysis does not reliably induce truthful statements”.
But the other view regarding the legal validity of Narco-analysis test is that it is used as an aid for collecting evidence and helps in investigation and thus does not amount to testimonial compulsion. In fact, as held in Rojo George’s case Narco-analysis is a very fair procedure, when considered in the light of third degree investigations, as it has a scientific basis and is conducted by experts after taking all possible precautions not to hurt the subject. The Court opined that Art. 20(3) was not hit as there was no compulsion because it is a scientific test, wholly conducted by a team of scientists and experts, and will not amount to custodial interrogation by the police.
In Dinesh Dalmia V. State,it was held that unless such tests are conducted, the investigating agency may not be in position to come out with clinching testimony. It was also held that the only element of compulsion was in taking an accused to the laboratory for tests against his will, but the revelations during such tests is quite voluntary. Therefore it cannot be said that a person’s right against self-incrimination will be infringed.
Thus it does not violate the constitutional provision regarding protection against self-incrimination.
Lastly I’d like to say that law is a living process, which changes according to the changes in society, science, ethics and so on. 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. The issue of using Narco- analysis test as a tool of interrogation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be clearer in the near future.
[1] Shukla V.N., Constitution of India, 10th edition, 2003, Eastern Book Co., Lucknow
[2] AIR 1978 SC 1025
[3] AIR 1961 SC 1808
[4] AIR 1973 SC 157
[5] AIR 1960 SC 756
[6] Sarkar & Ejaz, Law of Evidence, 5th Edition, 2003, Ashoka Law House, New Delhi
[7] 2006 Cri.L.J.2401
[8] Rojo George V. Deputy Superintendent of Police, 2006 (2) KLT 197
[9] Smt. Selvi and Ors. V. State by Koramangala Police Station,2004 (7) kar L.j. 501
[10] Murari Lal V. State of M.P., (1980) 1 SC 704; AIR 1980 SC 531
[11] Magan Bihari Lal V. State of Punjab, AIR 1977 SC 1091
[12] Supra at 1
[13] [372 US 293 (1963)]
[14] [753 F.2d.1522 (9th Cir.1985) 1985]
