NARCO ANALYSIS TEST- Can it strike a balance?

NARCO ANALYSIS TEST- Can it strike a balance?

By Raghul Sudheesh & Renu C. Paul, NUALS, Cochin

Narco-analysis, as practice of criminal investigation, is the administering of chemical drugs by the police to a suspect or witness in order to extract information from him/her by asking questions while in a drugged state. Generally three grams of sodium pentothal dissolved in 3 litres of distilled water are injected in one’s veins along with 10 per cent dextrose, slowly over 3 hours. This injected cocktail is believed to depress the body’s central nervous system, putting the subject in a state of trance, hence suppressing the rational faculties that would be present if questioned when fully awake. Though this practice of injecting drugs to adduce information has been in use in India for only half a decade, it is gaining popularity in police investigations and has been used in a number of high-profile cases, including that of Abu Salem, Abdul Karim Telgi and the Hyderabad bomb blasts. However view is divided on the admissibility of the results of Narco analysis as evidence in courts, its constitutional validity. 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.

Like any other method of interrogation, the criminal assessment test of Narco analysis also has its pros and cons. The police believe in Narco analysis as a scientific tool of interrogation, which would help a lot in crime prevention, detection and in getting clinching evidence through a supposedly effective and non-hazardous method of inducing hypnosis. Narco analysis is also considered by many to be a very scientific approach in dealing with an accused’s psychological expressions, definitely better than third degree treatment to extract truth from an accused. But on the other hand, doubts have been cast on its reliability and legal validity i.e. admissibility in courts of law.

Truth drug administration suffers from certain drawbacks-

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. If the subject is an abuser of other intoxicants/narcotics, Narco analysis could fail to inhibit them on account of the property of “cross tolerance” between Pentothal sodium and other intoxicants. 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 [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.

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. Thus it does not violate the constitutional provision regarding protection against self-incrimination.

Confession made by a semi-conscious person is not admissible in court. The roaming gospel of criminal jurisprudence is that a person making a statement should be in a fit state of mind. Thus 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 asses its admissibility. They can only assist the police investigation.

Section 24 of the Evidence Act lays down that a confession made by an accused person is irrelevant in a criminal proceeding if the making of such confession appears to the Courts to have been caused by inducement, threat or promise. The section is very clear on the point that a confession obtained by inducement, threat or promise would not be workable. In a Narco analysis test there is definite element of inducement, so not only fundamental rights of a person is violated, conducting this test would be against the spirit of section 24 of the Evidence Act and the result obtained would be irrelevant in a criminal proceeding. A combined reading of Ss.25 to 27 of the Evidence act is that no confession either made to the police or in the custody of police would be proved against a person accused of any offence. It has been held by the Indian Court many a times that the statements made to the police or in the custody are not admissible. These sections read along with S. 32 of the Act bar statements being admissible even if there is the slightest coercion or intimidation. But the same Courts have given a green signal to conduct the Narco analysis tests at the cost of personal liberty of the person on whom the test is conducted which is a clear cut violation of the legal principles and the constitutional values.

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 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 (be it under a hypnotic state of mind) it should stand to be rejected by the court.

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 selfincrimination, 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, 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. The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3); the privilege against self incrimination available to a person accused of an offence. It has its equivalents in the Magna Carta, the Talmud, and the law of almost every civilized country. The characteristic feature of this principle is that the accused is presumed to be innocent, it is for the prosecution to establish his guilt, and 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.

‘Fundamental Rights themselves has no fixed content most of them are empty vessels into which each generation must pour its contents in the light of its experience’.[ Keshavananda Bharati v. State of Kerala. 1973.] The Constitutional principles are the hollow bricks which are to be filled in accordance with the changing needs of the society. Law being a living process changes in accordance with the needs of the society, science, ethics. But this change should be based on the principles of justice and equity. 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. In a situation where a doubtful and unreliable test like Narco analysis is gaining judicial acceptance and support, we have to think seriously about its legal and constitutional validity in the human rights perspective The difficulties of criminal process are twofold; to trace a crime and to apprehend the person who committed it, which would be mitigated if the criminal process is crafted to enhance the probability of tracing crimes. Narco analysis and the like tests are merely the means to effectuate a society which boasts of a falling crime rate. Narco analysis may be used as an investigative tool but the results are not to be given an evidentiary value which if allowed would be a miscarriage of justice. What is to be brought in is a proper balance between individual liberty and public welfare.

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