Primary object of any criminal justice system is to secure justice which can be done only if there is some substantial proof. This substantial proof means that there must be some conclusive evidence which leads to proof beyond reasonable doubt.
This is obtained by the investigating authorities during investigation. At times it is seen that the human mind is the only source of information by which such conclusive evidence can be gathered.
In the past due to the lack of scientific means, verbal, physical investgations were possible which always left a room for manipulation and a doubt and were often difficult to obtain. But the advent of science and technology has brought to us new ways and means to aid in investigation and crime detection. Nowadays Narcoanalysis is being used by the investigating authorities as an alternative to the conventional ways of investigation.
A lot of questions regarding its admissibility have been raised and this still remains debated issue. While the press and public organisations have regularly critisised it as “inhumane” and “torture”, the judiciary has supported it as a ‘scientific’ means of investigation.The medical community and the advocates seem to be divided on the issue.
Narco-analysis - The Technique
Narcoanalysis, popularly known as ‘Truth Serum Test’, is Psychotherapy conducted while the patient is in sleeplike state induced by barbiturates or any other drug, especially as a means of releasing repressed feelings, thoughts, or memories. Its use is restricted to circumstances when there is a compelling, immediate need for patient’s response.
Thiopental Sodium is the drug which is normally used in the process of Narcoanalysis. This drug is commonly known as Sodium Pentothanal which is a yellow crystal, soluble in water or alcohol and is a sedative used as an anti depressant which if taken in high dosage, can lead to Cardio-Vascular depression and can even result to lead the subject to the stage of Coma.
Narcoanalysis is conducted by injecting 3 grams of Sodium Pentothal which is dissolved in 3000 ml of distilled water and above solution is administered intravenously along with 10% of Dextrose over a period of three hours with the help of Anesthetist. Obviously, this test has some invasion on the body. The rate of administration has to be so controlled that the suspect is slowly drawn into the state of hypnotic trace. The ECG and blood pressure have to be monitored. The revelations made during the hypnotic trance are recorded both in the video and audio cassettes. The entire conduct of the procedure is video-graphed. The questions are designed carefully and are repeated persistently in order to reduce the ambiguities during drug interrogation. After the Narco-examination is over the suspect is made to relax for 2-3 hours. The report prepared by the experts is useful in the process of collecting the evidence.
Position in India
Only a few democratic countries, India most notably, still continue to use narco analysis. This has come under increasing criticism from the public and the media in the country. Although, in India it is not permitted for investigative purposes openly.
The Bangalore Forensic Sciences Laboratory (BFSL) has been conducting lie detection tests and narco-analysis in India since 2000. A team comprising of an anesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer, and supporting nursing staff conduct this test. The forensic psychologist will prepare the report about the revelations, which will be accompanied by a compact disc of audio-video recordings. The strength of the revelations, if necessary, is further verified by subjecting the person to polygraph and brain mapping tests.
The turning point for narco-analysis in India came in 2002. In June 2002, three months after the burning of a train bogie by a crowd at Godhra in Gujarat, and the subsequent massacre of Muslims, seven persons accused of burning the train were brought to the Sree Sayaji General (SSG) Hospital in Vadodara.
Since then, this test has been conducted in many high profile cases, such as those of the Nithari killers and the Mumbai train blasts, the multi crore fake stamp paper case , etc. The narco-analysis test has found ready acceptance as a device to extract the truth during police investigations. It was also reported that there are about 300 people in the narco-analysis queue at the Forensic Science Laboratory (FSL) in Bangalore alone.
Reliability of the test
The narcoanalysis test has been criticized for its unreliability. Scientific studies demonstrate that the test is not foolproof and even induces confessions from innocent persons, as the subject is in a highly suggestible state and prone to give false or misleading answers to questions that may be improperly framed. Research suggests that these tests are ineffective on individuals who are determined to lie, as they are usually still able to lie even when drugged. Studies have shown that persons who make truthful confessions are those who were likely to confess had interrogators persisted with regular methods; and that persons who lie can continue to manifest a lie even under the influence of a so-called truth serum.
It is also feared that memories may be “planted” in the subject’s brain during questioning; a person may come to believe that he has actually committed the crime, even though in reality he is entirely innocent. Research shows that there is a very high risk of “a gross miscarriage of justice through undue dependence upon unreliable statements.”
But inspite of the above arguments the courts have supported narco-analysis as a scientific means of investigation. The Forensic Science Laboratory , Gandhinagar and The Bangalore Forensic Sciences Laboratory has successfully conducted various narcoanalysis tests since 2000. Dr. B.M. Mohan, Director of FSL, Bangalore, claims that he has data of over 300 cases to prove his contention that narcoanalysis has a 96 to 97 per cent total success rate. Included in the definition of `total success rate’ is the discovery of information that either triggers a relevant section of the law or may be cross verified with other tests (such as brain mapping).He also said that findings that discredit narcoanalysis are usually based on studies of scopolamine and sodium amytal and are not applicable to sodium pentothal, which is used by the Indian laboratories. He further added that during narcoanalysis the tendency is to sleep if not questioned, rather than hallucinating or fantasising.
Legal Sanctions
The scope of the narco analysis test collectively falls under the Section 45 of the Indian Evidence Act 1872, and Section 53 of Code of Criminal Procedure 1973 together.
Section 45 of The Evidence Act allows the court take expert’s opinion or the opinion of “persons specially skilled in such foreign law, or of science, or art, or as to identity of handwriting or finger impressions.”
Although it has been said that this section is silent on other aspects of forensic evidence it can be admissible in courts in criminal proceedings.
But the supporters of this test argue that scientific evidence can not be discarded solely on the above ground. “The only way available to disregard a scientific finding or the testimony of an expert witness is to show by cogent reason that either the scientific finding in question has no relevance with respect to the issue in question or the conclusions arrived at by the expert witness are not based on scientific reasoning but on speculations, or that the scientific process is not reliable for want of consistency.”
Similarly Section 53 of the Cr.P.C. makes provision for the medical examination of the arrested person by a registered medical practitioner at the request of a police officer.
Constitutional Validity
Right against self incrimination
Article 20(3) of the Indian Constitution states that “no person accused of an offence shall be compelled to be a witness against himself”. It operates as a protection against testimonial compulsion. Section 161(2) of the Indian Criminal Procedure Code (CrPC) provides a similar protection to the accused. It provides that a person is bound to truly answer all questions while being examined by the police except those that “would have a tendency to expose him to a criminal charge or penalty…”. The protection against self-incrimination is available to both – accused persons and suspects who have not been charged with the commission of an offence.
One of the essentials of this Article is that the accused can not be compelled to give witness against himself. Compulsion in the present context means duress. Thus consent forms an inevitable part of both Article 20(3) and Narcoanalysis. Administration of a drug against the will of the subject would amount to compulsion. Thus, the critics of the test hold that the testimony obtained by the test of Narcoanalysis amounts to ‘compelled testimony’ within the meaning of Article 20(3).
Arguments in support of these tests concerning Article 20(3) can be that :
· This Article was put in our to control the abuse of the powers of the police by using coercive means such as ‘third degree’ torture techniques. Narco-analysis as a test also became popular since it has substituted these abusive techniques of ivestigation.
· The purpose of this was to restrict the powers and so no wrong confession could be obtained from the accused. So the sole object behind this provision was to have fair evidence thereby leading to a fair conviction or a fair acquittal and not to hamper the process of investigation. Thus if the evidence is true, then there would be no reason why this Article 20(3) gets violated. Thereby it is said that if the test is done properly, after following all precautionary procedures, then Narcoanalysis, as a test will fall well within the spirit of The Constitution of India.
The following recent cases illustrate the approach of the judiciary regarding the question of validity of these tests:
· While dealing with the issue of the test conducted on the accused in the Telgi scam has in Ramchandra Ram Reddy v The State of Maharashtra, the Bombay High Court examined the issue of “whether requiring the accused to undergo these tests against his will would amount to compelling him to be a witness against himself”. The Court concluded that “…such [a] statement will attract the bar of Article 20(3) only if it is inculpating or incriminating to the person making it. Whether it is so or not can be ascertained only after the test is administered and not before.” 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”.
· 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.”
· 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.
Right to Privacy under Article 21
Article 21 contains in itself an ambit of rights which include right to privacy(Kharak Singh v State of Punjab) and right against torture.
Narco analysis has raised profound privacy concerns of the person by its invasion of the mental process of a subject. The person under the affect of barbiturates loses control over his mind there is always a risk that the unconscious mind may reveal personal information which is irrelevant to the investigation, and even innocent people might be named during the test, and which may later on prove to be harmful to a person’s reputation. The narcoanalysis test has been also critised a lot for its unreliability (as discussed earlier) and may also lead to false inculpations.
Such results may not be accepted by the court as direct evidence but it it wrongly prejudices the interests of justice against the subject or in favour of the subject , which will mitigate his guarantee of fair trial.
But it is also to be noted that this right absolute and fetters can be put on this right in the interest of the state , as stated by the Supreme Court in State v. Dharampal and State of Gujrat v. Anirudh Singh .
It has also been held in these cases that it is the statutory duty of every witness who has knowledge of the commission of the crime, to assist the State in giving evidence. So it seems justified that if the person does not willingly reveal such information that may be relevant to the investigation, an adverse impression must be taken against him. That is why the supporters of the test say that there is no conflict between Narcoanalysis and Article 21 of the Constitution of India.
The Narco-analysis Debate
There has been a long-standing debate about the reliability and acceptance of the Narco-analysis test medical aspect and legal aspect. The experts in both the fields seem to be divided on the issue.
Medical / Forensic aspect
As discussed earlier Narco-analysis test has been regularly critisised for its unreliable nature.
Dr. P.Chandrashekharan the highly regarded former director of Forensic Science Department of Tamil Nadu has characterized the practice as unscientific, third degree method of investigation.
There is enough scientific evidence to show that a person under the effect of a
drug often plays along with the suggestions made by the interrogator. In the book The Rape of the Mind the author and physician John Merloo says that the investigator can also induce and communicate his own thoughts and feelings to the suspect.
The research has also shown that the subject can also make false statements, under the semi conscious state. The truth serum is ineffective on the subjects who are determined to lie. Studies have also shown that people who truthful confessions are those who were likely to confess if the interrogators would have persisted in using regular techniques.
“Under the penthathol Narco-analysis when inhibitions are lowered a lot of unconscious mind of the patient may come into the fore. The patient says many things that he wished were true but were not necessarily true.” says Dr.Andrade a professor of psychopharmacology at NIMHANS , Bangalore.
But disregarding all these contentions Dr. B.M. Mohan, Director of FSL, Bangalore, claims that he has data of over 300 cases to prove his contention that narcoanalysis has a 96 to 97 per cent total success rate.
Moreover,
§ Expert psychologists, who frame the questions and guide the investigation process, conduct these tests in a controlled environment and ensure to reduce the margin of error to minimum.
§ These tests are often videotaped for carrying out further observations , by various psychologists and experts and the inferences are obtained only after thorough examination and only after various checks and crosschecks .
§ The tests results are also not published as a matter of practice by the forensic laboratories conducting these tests into the media or public, so as not to bias the public opinion for or against the subject.
§ They are often not acceptable as direct evidence or confessions but can be used as corroborative evidence, They are specially helpful iin providing further leads into the investigation process and material information that the subject is likely to hide relating to the commission of crime , information about relevant documents etc.
Legal Aspect
Lawyers are divided on whether the results of Narco Analysis and P300 tests are admissible as evidence in courts. “Confessions made by a semi-conscious person is not admissible in court. A Narco Analysis Test report has some validity but is not totally admissible in court, which considers the circumstances under which it was obtained and assess its admissibility,” according to advocate P. R Vakil. “Under certain circumstance, a person may hold a certain belief. He also said that the test can only be used as corroborative evidence.
Criminal lawyer Majeed Memon said, “If the courts give permission to conduct these tests, then only it can decide the admissibility of the test results and other related evidence. Such reports can be used as evidence or to support other evidence.” Another criminal lawyer Sham Keswani has a different view. “Such tests don’t have any legal validity. They can only assist the police investigation.” But, in case a person is not affected by the chemical, he might take some wrong names (to mislead investigators). The results of such tests can be used to support other evidence,” he said.
The legal and constitutional validity of this test has already been examined earlier. The case laws mentioned above and the arguments given thereon clearly affirm that this test is not violative of any legal or constitutional right.
The Police department had poor techniques when it came to collection, collation and presentation of evidence before the courts , this is due to the dwindling investigative skills at the grassroot level. Consequently, due to the enormous pressure on the police department to solve a case , narcoanalysis saves time and also gives the impression that something concrete is being done.
With the increase in terrorsit activities and serious crimes everyday ,the public is close to completely losing trust in the law and order machinery. These crimes have created insecurity in the minds of people. In such a scenario, the police need to employ whatever methods possible (within the law) to extract truth.
Moreover till now it has been used only in a few cases where the crime committed was of grave nature and posed serious threats to a nations interest and security. The number of persons subjected to narco analysis is low when compared to the total number of crimes reported. This negligible percentage of individuals cannot hold society to ransom. The individual’s constitutional right cannot override the State’s interest. This view has been upheld in the various high court rulings cited in the references.
Latest position
The Supreme Court its recent and most recent judgment has held that so-called narco analysis, brain mapping and polygraph tests cannot be conducted on any person without their consent. Such procedures “are illegal and a violation of personal liberty”, ruled a three-judge bench headed by Chief Justice K.G. Balakrishnan. The order came in response to petitions questioning the validity of such tests that were filed by persons accused in various criminal cases.
It is a historic judgment and the first instance anywhere in the world where the Supreme Court of the country has held these tests to be impermissible.
CONCLUSION
Law is a living process, which changes according to the changes in society, science, ethics and so on. Our legal system should be also be in tune with the developments and advances that take place in science to counter the increasing number of criminal activities in the present day scenario where the techniques used by the criminals for commission of crime are very sophisticated and modern.
The conventional method of questioning may not be able to lead to any result at all. Moreover police has been accused of undue delay in investigation and producing doctored documents, the modern methods like Narcoanalysis will act as a boon to the investigation procedure. Although it should not be made a matter of practice and should be used only in demanding situations.
But today when narco-analysis is gaining judicial acceptances and supports despite being alleged as “unreliable & doubtful” science, serious thoughts have to be given about its legal and constitutional validity from human rights perspective.
The chemical formula of Sodium Pentothal is C11H17N2NaO2S
Reddy. M. Sivananda, “Narcoanalysis and Truth Serum”.
Lawyers Update, July 2007; Pg. 11
The State of Bombay v. Kathi Kalu Oghad & Ors.[1961] INSC 233
MANU/MH/0067/2004
(2007) 8 SCC 770-
Kharak Singh vs State of UP, 1 SCR 332 (1964);
AIR 2003 SC, 3450
AIR 1997 SC 749
Frontline May 18 2007 Pg 101
