NARCO ANALYSIS - IT IT VIOLATION OF HUMAN RIGHTS AND CONSTITUTIONAL RIGHTS

NARCO ANALYSIS – IS IT VIOLATION OF HUMAN RIGHTS AND CONSTITUTIONAL RIGHTS

The term Narco analysis is derived from the Greek word narkç meaning "anaesthesia" or "torpor" and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly Barbiturates, which act as central nervous system (CNS) depressants, and by virtue of this they produce a wide spectrum of effects – from mild sedation to anesthesia

The police in India is using Narco analysis in eliciting confession from accused under the influence of drugs, which are supposed to relax a person's defence to the point that he or she reveals the facts or truth that he/she has been trying to conceal in normal circumstances. The person is not in a position to speak up on his own but can answer specific but simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers.

In 1922, Robert House, an obstetrician from Texas, experimented the use of Narco analysis in the interrogation of suspected criminals. He arranged to interrogate two prisoners in the Dallas county jail by using scopolamine, whose guilt was almost confirmed. Under the influence of drug, both prisoners denied the crimes for which they had been detained, and upon trial were found not guilty. After the successful experimentation, House concluded that an accused under the influence of drugs cannot lie.

The word “Truth Serum” is believed to have appeared first, in the news report of Robert House's experiment, and there, he came to be known as the “Father of Truth Serum.” However, in the mid-1930s, Narco analysis became popular as a result of the discovery of quickly acting barbiturates with short-term effects.

Method

The narco analysis test is conducted by mixing 3 grams of Sodium Pentothal or Sodium Amytal dissolved in 3000 ml of distilled water. Narco Test refers to the practice of administering barbiturates or certain other chemical substances, most often Pentothal Sodium, to lower a subject's inhibitions, in the hope that the subject will more freely share information and feelings. A person is able to lie by using his imagination. In the narco Analysis Test, the subject's inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like state efforts are made to obtain "probative truth" about the crime. Experts inject a subject with hypnotics like Sodium Pentothal or Sodium Amytal under the controlled circumstances of the laboratory. The dose is dependent on the person's sex, age, health and physical condition. The subject which is put in a state of Hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions. The subject is not in a position to speak up on his own but can answer specific but simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers.

Apart from narco test there are also other two kinds of tests which are popularly used on the convict for extraction of truth, these are-

I. Polygraph or lie Detection 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. The machine records the blood pressure, pulse rate and respiration and muscle movements. Polygraph test is conducted in three phases- a pretest interview, chart recording and diagnosis. It was Keeler who further refined the polygraph machine by adding a Psycho-galvanometer to record the electrical resistance of the skin.

II. 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. The subject is not asked any questions here. In USA, the FBI has been making use of “Brain mapping technique” to convict criminals.
. In India, the narco analysis test is done by a team comprising of an anesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer, and supporting nursing staff. 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.

Legal Validity

In India, narco-analysis was first used in 2002 in the Godhra carnage case. It was also in the news after the famous Arun Bhatt kidnapping case in Gujarat wherein the accused had appeared before NHRC and the Supreme Court of India against undergoing the narco-analysis. It was again in the news in the Telgi stamp paper scam when Abdul Karim Telgi was taken to the test in December 2003.

In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: "No person accused of any offence shall be compelled to be a witness against himself." Statements made under narco analysis are not admissible in evidence.

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."

In January 24th, 2008, a bench of Chief Justice K.G. Balakrishnan reserved its ruling after hearing arguments for three days from various parties, including Solicitor General Goolam E. Vahanvati and senior advocate Dushyant Dave, appointed by the bench as amicus curiae to assist the court in the case.
Telgi and his accomplices are facing probe by various states' police and other investigative agencies for their alleged criminal acts.
These accused people have challenged the legality of the use polygraph, brain mapping and narco-analysis by the investigative agencies to probe the crime.

The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra, upheld the legality of the use of P300 or Brain finger-printing, lie-detector test and the use of truth serum or narco analysis. The court upheld a special court order given by the special court in Pune as mentioned above, allowing the SIT to conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul Karim Telgi. The verdict also said that the evidence procured under the effect of truth serum is also admissible. 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”.

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. When the technicalities of the test itself are not clear and uniform, it becomes difficult to accept the stand taken by the court.

            Views

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 and the law of almost every civilized country.

The privilege against `self incrimination is a fundamental canon of Common law criminal jurisprudence.

1.The characteristic features of this principle are-
2.The accused is presumed to be innocent,
3.That it is for the prosecution to establish his guilt, and
4.That the accused need not make any statement against his will.
5.The privilege against self-incrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice.
Art. 20(3) which embody this privilege reads, “No person accused of any offence shall be compelled to be a witness against himself”.

On analysis, this provision will be found to contain the following components:
1.It is a right available to a person “accused of an offence”;
2.It is a protection against such “compulsion” “to be a witness”;
3.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.

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.

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.

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 vs 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.

With crimes going hi-tech and criminals becoming highly trained professionals, the use of narco analysis by the investigating officials can be very useful, because whereas the conscious mind does not speak out the truth, unconscious may reveal the information, which could provide vital lead in.

Narco analysis test could result in an output contaminated by deception, fantasy and garbled speech.

However, defense lawyers and human rights activists viewed that narco analysis test was a very primitive form of investigation and third degree treatment, and there were legal lapses in interrogation with the aid of drugs.

Adv. K.C. Suresh, B.A., LL.M ( Crimes), PGDHR (Human Rights), Kerala

Suresh_kc@sify.com