Curtsey to INDLAW
Narco analysis and the Constitution
Shashwat Bajpai
As science has outpaced the development of law or at least the laypersons understanding of it, there is unavoidable complexity regarding what can be admitted as evidence in court.[1] Narco analysis is one such scientific development that has become an increasingly, perhaps alarmingly, common term in India. It refers to a process of psychotherapy conducted on a subject by inducing a sleep-like state with the aid of barbiturates or other drugs. In a spate of high-profile cases, such as those of the Nithari murders, Abu Salem and the Mumbai train blasts, suspects have been whisked away to undergo an interview, drugged with the barbiturate sodium pentothal. [2] Far from being novel, truth serums have been in use since the early part of the 20th century. During and after the War years, United States armed forces and intelligence agencies continued to experiment with truth drugs. The Central Intelligence Agency (CIA) has admitted to using these as part of its interrogation tactics.
In 1989, the New Jersey Supreme Court (State v. Pitts)[3] prohibited the use of sodium amytal narco analysis because the results of the interview were not considered scientifically reliable. The court opined that subjects are susceptible to filling in gaps in stories with fabricated detail (hyper amnesia), or believing in false events (memory hardening), and hypnotic recall, where thoughts of non-existent events become embedded in the memory. Scientific skepticism and the absence of controlled studies have not deterred Indian investigating agencies from running to the FSL in Gandhinagar or, more likely, Bangalore. FSL Bangalore is the de facto hub for narcoanalysis for various police departments across the country. Narcoanalysis is conducted using sodium pentothal, in conjunction with three other tests - psychological profiling, polygraph (the lie detector) tests, and brain mapping. Polygraph tests, which one can learn to pass or fail, are used for screening and confirmation purposes only.
The polygraph test is premised on the principle that certain physiological changes will take place due to the fear of deception in the mind of the guilty person, which can be detected by using proper technology. [4] This in reality does not always take place, because unlike the fictional Pinocchio we are not equipped with a distinctive physiological response that we emit involuntarily when and only when we lie.[5] Brain mapping, not entirely free from controversy itself[6] indicates whether a subjects brain stores experiential knowledge about a certain object. Narcoanalysis is used when investigators need oral elicitations from a suspect. For instance, if brain mapping indicates that the suspect stores information about a murder weapon used in the crime, then narcoanalysis, according to the FSL, Bangalore, is used to provide information such as location of the weapon and similar information.
The narco analysis test is based on the principle that a person is able to lie using his imagination and, under the influence of certain barbiturates, this capacity for imagination is blocked or neutralized by leading the person into a semiconscious state. It becomes difficult for the person to lie and his answers would be restricted to facts he is aware of.[7] Narco analysis poses several questions at the intersection of law, medicine and ethics. How truthful is truth serum? Is the procedure for narco analysis is violative of the rights agains self-incrimination, guaranteed under Article 20 (3) of Constitution. Article 20 (3) states that no person accused of any offence shall be compelled to be witness against himself. This privilege against self-incrimination also provides the individual, the right to remain silent. Arguments have been made that narco analysis constitutes mental torture and thus violates the right to life under Article 21. It works by inhibiting the nervous system, and it is not difficult to interpret this as a physical violation of an individuals mind-space. It is for this reason that the scientific, legal, and evidentiary issues relevant to the narco analysis debate need to be discussed critically.
In Dinesh Dalmia v. State of Maharashtra[8], the Madras High Court ruled that narco analysis testimony was not by compulsion because the accused may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary. The High Court was convinced that it was possible to compel one to testify voluntarily. The reasoning does not stand up to comparison with a witness being tortured or threatened to testify in court. If this is not voluntary, how could testimony under the influence of drugs, when even ones volition is suspended, be voluntary? The decision of the High Court clearly acknowledges that the person in question is taken to the laboratory against his will. It is often reasoned that the consent form signed by the accused supplies the requirements of voluntary disclosure. This is a fallacy, as in case of court mandated narco analysis, the consent form has absolutely no relevance because the compliance of a judicial order passed by a competent court is not subject to anybodys consent. The term order itself implies authority to compel obedience.
The above case is in stark contrast with the judgment of an eleven-judge bench in the case of State of Bombay v Kathi Kalu Oghad,[9]where it was observed that self-incrimination means conveying information based upon personal knowledge of the person and cannot include merely the mechanical process of producing documents in court. The principle of immunity from self incriminating evidence is founded on the presumption of innocence, the maxim Nemo tenetur seipsum accusare had its origin in a protest against inquisitorial and manifestly unjust methods of interrogating accused persons.[10] It is not necessary that the actual trial needs to commence for an accused to avail this privilege.[11] The Supreme Court of U.S in Miranda v Arizona[12] observed that a person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; Further, if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. It is perceived that Police Departments in India have poor skills when it comes to collection, collation and presentation of evidence before the courts. It is alleged that polygraph testing, brain mapping and narco analysis are quick fix tools used by the police. The old Latin Maxim deceptis non decepientibus, jura subveniuni, [13] meaning the law helps who are deceived, not those deceiving has perhaps become an excuse for resorting to such dubious methods of investigation. The Supreme Court, in November 2006, ordered a stay on a metropolitan judge''s order to conduct narcoanalysis on K. Venkateswara Rao, in the Krushi Cooperative Urban Bank case.[14] Rao refused to sign a consent form, and to its credit, the FSL, Gandhinagar, refused to conduct the test without the signed consent form. The Supreme Court decision on the case is awaited and will have a significant bearing on the use of narco analysis in India. The Supreme Court has not yet delved into the question of whether narco-analysis is in violation of Art.20 (3). There have been orders of various High Courts upholding the validity of narco analysis. These judgments are in stark contrast with the earlier judgments of the Supreme Court interpreting Art. 20(3). The veracity lies in the fact that narco analysis is still a nascent interrogation technique in the Indian criminal justice system without any rules or guidelines. The Central government must make a clear policy stand on narco analysis - because what is at stake is India''s commitment to individual freedoms and a clean criminal justice system.
While expert studies and court opinions available internationally have granted that there may be some use in narcoanalysis, the overwhelming evidence is that narco analysis is by no means a reliable science. In the absence of proof that narco analysis is backed by sound science; it must necessarily be suspended, especially given its ethical and human rights implications.
The test can be grossly misused by suggestive questioning by the investigating agencies. Psychiatrists hold that some 50 per cent of all individuals are suggestible even while fully conscious, meaning they can be made to believe events that never actually happened. Therefore, while patients under narco analysis may find it difficult to lie consciously depending on the depth of the narco analysis, they can certainly say things that are on the surface of their minds. The patient may say things that he wished were true and not that were necessarily true.
Therefore such a dubious technique of interrogation which requires enormous amounts of training and patience - skills evidently lacking in much of the police force in India should be prohibited in the Indian Criminal system as it fundamentally violates the presumption of innocence.
(The author is a student of Amity Law School, New Delhi.)
[1] Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) referred to in Lakshman Sriram, Narcoanalysis and some hard facts, Frontline, Kasturi & Sons Ltd. Volume 24 - Issue 9, May. 05-18, 2007 [2] Singh, HemRaj, Is Narco- Analysis A reliable Forensic Science?, Lawyers Update, July 2007, Universal Law Publishing co., New delhi, 2007. [3] https://www.hinduonnet.com/fline/fl2409/stories/20070518002109700.htm. last visited on September 18, 2007 [4] Sharma, B.R., Forensic Science in Criminal investigation and Trials, Universal Law Publishing, Delhi, 2005, 4th Edition, ISBN 817534332X, p. 25. [5] (Lykken, 1989-123) reffered to in Mitra Bhargav, The Lie Detector, Its validity as Scientific evidence and its legal status in U.S. and India, 2005 Cri LJ (Vol. 2) pp.185-192,All India Reporter, Nagpur, 2005, p.185. [6] Nadakkavu, Sreejith Cherote, Brain Finger Printing- Cognizance to Cognitive Evidence, (2006) Cri LJ (Aug) pp. 183- 186,All India Reporter, Nagpur, 2006, p.183. [7] Kumari, S. Kusuma, Narco Analysis Right to Self Incrimination vs. Public Interest, (2007) Cri LJ (June) pp. 137- 141, All India Reporter, Nagpur, 2007. p.138. [8]Dinesh Dalmia v. State of Maharashtra, Cri LJ July 2006, page 2401 (Mad) [9] State of Bombay v Kathi Kalu Oghad, AIR 1961 SC 1808 [10] Brown v. Walker (1896) 161 US 596, Referred to on https://www.guncite.com/court/fed/sc/161us591.htm last visited on September 24th 2007 [11] M.P. Sharma v Satish Chandra, AIR 1954 SC 300. [12] 1966 3 & 4 US 436, Referred in Kamisar Yale, Modern Criminal Procedure, Sixth edition, (1st Reprint), 1987, Wayne R. Lafave (ed.) & Jerold H. Israel (ed.), West Publishing Co., Minnesota, ISBN 0314 23839 5 . Nandini Sathpathy v. P.L. Dhani, Case Referred in Supra, n 4, at p. 138 [13] Gupta Ekta, Lie Detector Test: A Global Perspective, 2006Cri. LJ (Aug), pp.179-183, AIR, Nagpur, 2006. [14] Referred in Lakshman Sriram Op.cit.
