The advent and rise of technology have brought about many innovations in various fields including the field of criminal law that has been of a great help for various legal and criminal experts as it has made it easier and simpler for them to extract the information and detect lies, thereby putting a step forward in doing away with the “third-degree torture” by the police officials. The deception detection test is one of such developed technologies that is beneficial for the Criminal Justice System to extract information and detect lies and one of its methods is popularly known as Narco-Analysis test.
Narco-Analysis test refers to a check that is executed upon a suspect or an accused in a hypnotic or semi-conscious state because of the administration of medicinal drugs known as “sodium pentothal”. The objective of the test is to get into the intricacies of the hidden evidence and prove either the guilt or innocence of the accused. The test, therefore, is also referred to as “truth serum test” but the extent to which the information obtained during the procedure is truthful is quite debatable because the administration of the drugs to the accused blocks his reasoning capacity. The reasoning with which the test is performed on the accused is that the statements obtained from the accused can be used as an evidence in the Court of law, but it should be noted that the Evidence Act, 1872 itself is silent on this aspect. Thus, it is often debated that the results of the Narco-Analysis Test should not be admissible as an evidence by the Courts since the statements are made by the accused under the influence of the medicinal drugs, thus the person not being in a fit state of mind.
Despite all the controversies surrounding the Narco-Test Analysis and not being clear on the fact whether the results obtained can be used as an evidence in the Court of law to prove either the innocence or guilt of the accused, the Courts in various famous cases such as Godhra case, Aarushi Talwar case, Telgi scam of stamps case etc. have permitted the use of Narco-Analysis test to detect the truth and gather evidence. The test though is usually obtained after the accused has consented to it, but it is quite possible for the accused to give his consent because the Court ordered for the conduction of the test which in that case would not be said to be free. Thus, considering all the controversies surrounding the conduction of Narco-Analysis test on the basis of it infringing the basic human rights of an accused that has been highlighted by the various existing literatures, it is of primary importance to understand and analyze the validity and constitutionality of the Narco-Analysis Test, analyzing if any basic human and fundamental rights guaranteed to the accused is being infringed by conducting the Narco-Analysis test.
CONSTITUTIONALITY OF NARCO-ANALYSIS TEST
The Narco-Analysis tests are considered to be a highly reliable source for extracting truthful information from the accused that could act as an evidence in the Court of law and prove either the guilt or innocence of the accused but there are multiple empirical studies that suggests that the truth serums to not induce truthful and reliable statements because the person subject to the Narco-Analysis test is under a hypnotic state due to the administration of truth serum that might result in the giving of false or misleading statements. Also, careful understanding and interpretation of the whole procedure of deception detection test have arose certain controversies surrounding the conduction of such tests on the grounds mentioned below.
The accused is induced to become a witness against himself that is prohibited by Article 20(3) of the Indian Constitution that is guided by a legal maxim “nemo teneteur prodre accussare seipsum”.
The administration of truth serum unrestrictedly access, the privacy of the mind of the accused, thereby resulting in mental assault and torture that comes in violation of Article 21 of the Indian Constitution.
Thus, in this article, the constitutionality of the Narco-Analysis test has been tested based on the two grounds i.e., Article 20(3) and Article 21 of the Indian Constitution because of the above stated controversies.
NARCO-ANALYSIS TEST AND ARTICLE 20(3) OF THE INDIAN CONSTITUTION
Article 20(3) of the Indian Constitution provides protection to an accused to be a witness against himself and acts as a protective umbrella that provides immunity against “Right to self-incrimination” to an accused under its ambit. It is against “testimonial compulsion” as one of the crucial objectives of this provision is to ensure that the statements are made voluntarily as it acts as an assurance to the statements made by the accused being reliable because “testimonial compulsion” increases the likelihood of the accused making false statements. This, therefore, gives birth to “right to silence” that is guaranteed to the accused by way of Article 20(3) of the Indian Constitution which allows the accused or a suspect to not respond to the questions that are being imposed to him by either the investigating authorities or Court. The “right to silence” though can be waived off by the accused voluntarily and knowingly but cannot be compelled to answer the questions posed.
Right to self-incrimination under Article 20(3) is attracted only in situations wherein the accused is compelled to make the statements that have a strong tendency of proving him guilty and exposing him to the criminal charges and this right protected under Article 20(3) is not only limited to the trial stage, rather it extends to the investigation process as well because the words “to be a witness” that are being used in Article 20(3) have been interpreted to include the testimony induced by compulsion outside the Court as well.
During the investigation process, the information provided by the accused to the investigating officers furnishes as the evidence for the case, therefore acting as a “witness” during the investigation procedure but would not be referred to as a “compelled” witness unless he has been forced or compelled to provide the information to the investigating officers and thus, it would infringe Article 20(3) of the Indian Constitution.
The Narco-Analysis test falling under the category of the impugned tests involves a testimonial act wherein the answers are given by the subject under the influence of drugs and should not be distinguished from the ordinary police investigations. Also, such tests when conducted on the subject, it remains unknown if the answers to the questions posed by the investigating officers would be inculpatory or exculpatory, rendering the “right to self-incrimination” meaningless by not providing him the choice between speaking and remaining silent, thereby amounting to testimonial compulsion and triggering the protection guaranteed under Article 20(3) of the Indian Constitution. Thus, the accused should not be compelled to undergo the test as it would infringe the right to self-discrimination that is protected under Article 20(3).
NARCO-ANALYSIS TEST AND ARTICLE 21 OF THE INDIAN CONSTITUTION
The reliability of the impugned tests such as Narco-Analysis tests is often doubted and questioned because the revelations are made by the accused under the influence of drugs and need not be true. Also, the reliability of such tests “bears a link with the dimensions of right to fair trial such as the requisite standard of proving guilt beyond reasonable doubt and the right of the accused to present a defence that have been identified as the components of personal liberty under Article 21 of the Indian Constitution”. It has also been contended that the administration of such tests results in “cruel and inhumane” treatment of the accused, thereby violating Article 21 of the Constitution. Thus, under this section of the study, it has been analyzed if the compulsory and involuntary conduction of Narco-Analysis test violates personal liberty of the accused, thereby resulting in infringement of Article 21 of the Indian Constitution. The same has been proved using two limbs:
Narco-Analysis test and Personal Privacy
Narco-Analysis test and Right against Cruel, Inhumane and Degrading behavior.
NARCO-ANALYSIS TEST AND PERSONAL PRIVACY
The apex Court in the case of Selvi v. State of Karnataka has dealt with the issue at hand and has pointed that under the criminal justice system, the Courts and Police are fundamentally empowered to “exercise a degree of coercive powers” in the view of “force as may be reasonably necessary”, thereby also enabling the Courts to pass an order for the accused person to undergo a medical test. But it should be noted that these powers are not absolute and reasonable restrictions can be imposed on them based on “fairness, non- arbitrariness, and reasonableness”. These powers that are vested in the Court and Police officials extends only to physical privacy of the accused but does not extend to “compel a person to impart personal knowledge about a relevant fact” for the extraction of testimonial responses and the same was opined by the apex Court after analyzing the stance of the Court in various judgements, especially in that of Sharda v. Dharampal, 2003.
The apex Court also recognized that the “personal autonomy” of an individual is vested in him having a right to choose between speaking or remaining silent especially in cases where he has been exposed to criminal charges and no person is allowed to interfere with this personal space of an accused. This opinion of the Court thereby, suggests the accused being vested with the right against self-incrimination, thereby, reading it as a component of Article 21 as well and highlighting an inter-relation of Article 21 with Article 20(3) of the Indian Constitution.
Putting the above stated reasoning given by the apex Court in the issue at hand, it can be said that the administration of Narco-Analysis test that is done to extract the testimonial responses cannot be forced or compelled on an accused by any authority and, also it results in the intrusion of mental privacy of an accused as the inferences are drawn from his psychological responses made under the influence of drugs. The interference with the mental process of an individual or accused is not provided for, in any statute as it comes in conflict with the right against self-incrimination because the accused is under the influence of medicinal drugs and does not get a right to remain silent whenever he wishes to. Thereby, it can be said that the compulsory and involuntary administration of Narco-Analysis test to an accused does amount to the infringement of right to privacy protected under Article 21 of the Indian Constitution.
NARCO-ANALYSIS TEST AND RIGHT AGAINST CRUEL, INHUMANE AND DEGRADING BEHAVIOR
Though there is no explicit protection provided by the Indian Constitution against an act that is cruel, inhumane and degrading but the apex Court has opined such an act to be unreasonable and arbitrary and falls foul of Article 21 when inflicts procedural fairness. The Court in the case of D.K. Basu v. State of West Bengal have also recognized the significance of protecting an individual who is under-trial, taken into custody or arrested in course of investigations in criminal cases from cruel, inhumane and degrading behaviour.
There are several International Conventions such as Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and Body of Principles for the Protection of all persons under any form of Detention or Imprisonment that has contents relating to “torture and other cruel, inhuman or degrading treatment or punishment” and which India is a signatory to that “holds significant persuasive value since they represent an evolving international consensus on the nature and specific contents of human rights norms”. Emphasis on Principle 6 and 21 of the Body of Principles for the Protection of all persons under any form of Detention or Imprisonment (1988) should be made for the purpose of the study that states as follows.
Principle 6: "The term `cruel, inhuman or degrading treatment or punishment' should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time."
Principle 21(2): "No detained person while being interrogated shall be subjected to violence, threats or methods of interrogation which impair his capacity of decision or judgment."
In the issue at hand, a person or accused who is forcibly administered Narco-Analysis test would be considered to be in a custodial environment and is not aware of the responses given by him in a drug-induced state, neither an effective choice between speaking and remaining silent can be made out. Thus, it cannot be denied that the person subjected to Narco-Analysis test loses his capability to decide or make any judgement due to the administration of drugs, thereby suggesting that compulsory and involuntary administration of Narco-Analysis test constitutes to cruel, inhumane and degrading behaviour within the context of Article 21 of the Indian Constitution.
Thus, it can be concluded that the involuntary administration of Narco-Analysis test does amount to the infringement of Article 21 of the Indian Constitution as it violates the right to privacy by intruding in the mental privacy of the accused and also constitutes cruel, inhumane and degrading behaviour.
CONCLUSION AND SUGGESTIONS
A rise in technology has given birth to the deception detection tests that also includes Narco-Analysis test for the smooth functioning of the criminal justice system. The study of the existing literature suggests such tests being violative of the basic human and fundamental rights that have been guaranteed by way of Article 20(3) and 21 of the Indian Constitution. Therefore, in this study the constitutionality and validity of the Narco-Analysis test in terms of Article 20(3) and 21 of the Indian Constitution has been analyzed.
The findings of the study reveal that the compulsory and involuntary administration of Narco-Analysis test violates and infringes the right against self-incrimination, right to privacy and right against cruel, inhumane and derogatory behaviour that have been protected by way of Article 20(3) and 21 of the Indian Constitution. It, therefore, signifies that the Narco-Analysis test is not unconstitutional as it is valid under the circumstances wherein the accused voluntarily agrees or consents to undergo the test.
ANOOPAM MODAK, SCIENTIFIC TECHNIQUES IN CRIMINAL INVESTIGATION 199 (Universal Law Publishing 2016).
R. RAMCHANDRAN, SCIENTIFIC TECHNIQUES IN CRIMINAL INVESTIGATION 249 (Kamal Publishers, New Delhi 2012).
D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
Ernesto Miranda v. Arizona, 384 US 436 (1966).
Gangadhar v. State of Madhya Pradesh, (2020) 9 SCC 202.
Gyanesh Rai v. State of U.P., 2015 (6) All LJ 499.
M.P. Sharma v. Satish Chandra, (1954) SCR 1077.
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
Nandini Satpathy v. Dani, 1978 SCR (3) 608.
Selvi v. State of Karnataka, (2010) 7 SCC 263.
Sharda v. Dharampal, (2003) 4 SCC 493.
State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10.
INDIA CONST. art. 20, cl. 3.
INDIA CONST. art. 21.
GA Res. 217 A (III), art. 5 (Dec. 10, 1948).
G.A. Res. 2200A (XXI), art. 1 (March 23, 1976).
GA Res. 43/173, 76th plenary meeting (Dec. 9, 1988).
Abhishek Pathak, Narco-Analysis: A Critical Appraisal, 5 INDIAN JOURNAL OF FORENSIC MEDICINE & TOXICOLOGY 54, 54-57 (2011).
Ajay Kr. Barnwal & Dr. S.N. Ambedkar, Narco-Analysis Test: An Analysis of Various Judgements of Indian Judiciary, 19 JOURNAL OF HUMANITIES AND SOCIAL SCIENCE 52, 52-57 (2014).
H. Pricilla & Arya R., Polygraph and Narco-Test in Indian Evidence Law- Through Case Laws, 120 INTERNATIONAL JOURNAL OF PURE AND APPLIED MATHEMATICS 125, 125-145 (2018).
Indu Rani, Evidentary Value of Narco-Analysis Test, 9 INTERNATIONAL JOURNAL OF RESEARCH IN SOCIAL SCIENCES 1021, 1021 (2019).
Sourodip Nandy and Himanshu Garg, Constitutionality of Narco Analysis and Polygraph Examination, 2 INTERNATIONAL JOURNAL OF LAW, MANAGEMENT AND HUMANITIES 1, 1 (2019).
Suresh Bada Math, Supreme Court Judgement on Polygraph, narco-analysis & brain-mapping: A boon or bane, 134 INDIAN JOURNAL OF MEDICAL RESEARCH 4, 4-7 (2011).
Ananthi S Bhardwaj & Sumithra Suresh, Narco Analysis and Protecting the Rights of the Accused, NALSAR STUDENT LAW REVIEW, http://www.commonlii.org/in/journals/NALSARStuLawRw/2008/12.pdf.
Sonakshi Verma, The Concept of Narco-Analysis in View of Constitutional Law and Human Rights, RMLNLU, http://www.rmlnlu.ac.in/webj/sonakshi_verma.pdf.
Yamini Rajora, Scientific Evidence in Criminal Trial: Narco Analysis, LAWCTOPUS (April 07, 2021), https://www.lawctopus.com/academike/scientific-evidence-narcoanalysis/.
LAW COMMISSION OF INDIA, REPORT NO. 180: ARTICLE 20(3) OF CONSTITUTION OF INDIA AND THE RIGHT TO SILENCE 3 (2002).
NATIONAL HUMAN RIGHTS COMMISSION, USE OF NARCO ANALYSIS TEST AND BRAIN MAPPING (2000).
The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).
Submitted by: Saloni
Batch: May 4