Narco-Analysis in India

This article discusses the nuances of Narco analysis in India. This has been written by Aditi Singh student of Army Institute of Law, Mohali.

Genesis

As science has outpaced the development of law there is an unavoidable complexity regarding what can be admitted as evidence in court^[1]. Narco-analysis is one such scientific development; coined by J.S. Horsley, the term Narco-Analysis is a widely debated and controversial topic. It has introduced noteworthy arguments on the protection of human rights viz. Justice, privacy, and constitutionality and if free will of people is negatively impacted on its administration.

Narcoanalysis — also known as the truth serum test — epistemologically, is derived from the Greek word ‘narke’ which means “anaesthesia” or “torpor”^[2]. The term itself is a mixture of ‘narco’ and ‘analysis’. Its semantic construction primarily signifies an examination by supervision of medicines^[3] — a psychoanalysis using drugs to induce a state akin to sleep. 

Its first mainstream use was spotted around 1922 by Robert Ernest House, a Dallas Texas Obstetrician. He used the drug scopolamine to interview two male prisoners (later acquitted) claiming to be blameless under the drug’s influence^[4] and since then it’s been widely talked about and administered around the world. India too, has debated on the soundness — authenticity, rationality and justiciability — of this method, with a diversified opinion among the masses and by various jurists, legal academicians and scholars. 

India recorded its first narco-analysis test in the Forensic Science Laboratory, Bangalore in 2001 on an individual associated with offences committed by Veerappan^[5] and since then it has been used widely, including in various high-profile cases as well, like: The Nithari Killings, Aarushi Talwar Double Murder, Malegaon Bomb Blast Case, The 2002 Best Bakery Incident, The Multi-crore Fake Stamp Paper Case (the Telgi Scam) and many more, etc. 

The Scientific Tests: Usage

Also known as Deception Detection Tests (DDT) or more commonly as the, Polygraph (lie detector), P-300 (BEAP Test^[6]) and Narcoanalysis,^[7] are the three scientific techniques for use in criminal investigation which lies in the ambit of the aforementioned examination methods, conducted in a methodical way like: attaching various probes to the body of the person under interrogation, sensors detecting memory through encoding related MERMER^[8], or intravenous administration of drugs inducing into a trance-like hypnotic, less-inhibited state. 

Narcoanalysis is the most controversial of this trio. The test is conducted by injecting 3 grams of ‘Sodium Pentathol’dissolved in 3000 ml of distilled water and the solution is administered, intravenously, along with 10% of dextrose over a period of three hours with the help of a qualified anaesthetist.  At an appropriate dosage, there is just enough neural inhibitory effect to create a stupor and inhibit independent thought and action to a greater extent^[9].   

This simultaneously, raises questions on the tests constitutional validity, implications and evidentiary admissibility. 

Position of the World

Before approaching the current status of India, there’s a need to take into consideration the footing of DDT’s around the globe. Taking into account the position of USA — wherein, too, there is a divided stance much like India — and has been largely discredited as potentially violative of the Fifth Amendment of the U.S. Constitution^[10], like most democratic nations. Courts have refused to admit the findings of the technique. The Supreme Court of America had upheld the right to silence of the accused^[11]. It’s also been observed as not only violative of right to silence but also a form of mental torture^[12]. More recently, in State v. Pitts^[13], the result of a sodium amytal interview, was disallowed and ruled as not a valid scientific technique.  

Notwithstanding the aforesaid, there are several contradictions as well. Narcoanalysis, albeit has been used by the US in fighting its war on terrorism. It was held in the case of Indianapolis v. Edmond^[14] that truth serum may be administered without any warrant or a probable cause in order to assist in the war against terrorism or other grave offences. ‘If there is a need, the general interest of the public would override the individual rights’.

Furthermore, a recurrent argument made is that society’s need for interrogation outweighs the privilege^[15]. Pointed out in Malloy v. Hogan^[16] the court unhesitatingly held that the claim of a witness of privilege against self-incrimination has to be tested on a careful consideration in the case and where it is clear that the claim is unjustified, the protection is unavailable.

Concerns have also been raised through the European Court of Human Rights arguing that use of truth serum could be considered a violation of a human right to be free from degrading treatment and torture^[17]. It’s also been noted as violative of the Inter-American Convention to Prevent and Punish torture^[18].

Narcoanalysis in India 

When it comes to India — although there has been usage of the technique several times — it doesn’t really have a legal validity since it’s made by a semi-conscious person. Additionally it’s not 100 percent accurate along with people giving multiple accounts certain times. Considering the circumstances, limited admissibility may be granted. 

In India, with the fundamental right granted under Article 20 (3)^[19] of the Indian Constitution there’s a right against self-incrimination which is the main cause of all the contrary opinions. 

The contrasting view argued is the availability of protection under Article 20(3), provided only to the accused and that too if, and only if, he is compelled to be a witness against himself^[20]. Moreover, the protection would be available only from the time the person is charged of an offence. It doesn’t extend to pre-accusation stages on its strict interpretation^[21].

Courts all over India and the world have applied a specific legal remark to a wide range of situations which has been opined as: “It matters not how you get it; if you steal it even, it would be admissible”^[22] which marks a question on free liberty and privacy of people. 

The Bombay High Court in a landmark case, gave a significant verdict in Ramchandra Ram Reddy v. State of Maharashtra^[23], by upholding the legality of the use of narco-analysis test in India, P-300 and brain-mapping. Believing that there’s a necessity of advancements in legal techniques with criminals becoming professionals and crimes refined, scientific evolution in interrogations, evidence examinations, and resources may provide vital information for cases. Besides, Section 53(1) of CrPC, permits use of reasonable force in order to ascertain facts which afford evidence and Section 39 of the same act requires every person to furnish information regarding offences — Narcoanalysis can be included in the articles’ scope. 

Hence, this method carried under a registered medical practitioner examination, would be justified^[24].            

Howbeit, the preceding argument and decisions have been criticised and deconstructed, time and again, massively. In State of Bombay v. Kathi Kalu Oghad^[25], compulsion was held to be a physical objective and a state of mind only where the state of mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and therefore, extorted. Since this technique involves a certain dosage of drugs with a hypnotic state of mind, it would be appropriate to call it an extraneous process and a form of compulsion.

The test has also been found to be violative of an individual’s right to privacy; it can be termed as inhumane. Article 21 of the Indian Constitution guarantees this right (to protect the right to life and liberty) and includes the right to privacy — the right to be free from torture and cruel, inhuman, or degrading treatment^[26]. To obstruct or deny this right which is fundamental to every citizen is neither judicious nor prudent.  

The Supreme Court observed that the guarantee in article 20 is against ‘testimonial compulsion’. There is no reason to confine the content of the constitutional guarantee to this barely literal import. Limiting it amounts to robbing the guarantee of its substantial purpose. Therefore, this evidence is neither oral nor documentary — it’s outside the limit of ‘testimony’^[27].  

Conclusion

Ultimately, the administration of Narcoanalysis in judicial matters in India begs to question if this construct is fundamentally obstructive of the rights authorized to every single citizen. The continuous unearthing of loopholes in the application and diction of judicial principles has the ability to open a wide array of irregularities and barricading of human rights specifically if it comes at the cost of evidence and resolution of cases. Although, in the backdrop of today’s legal climate, the divided opinion of this scientific technique might stay stagnant its legality and validity, when it comes to evidentiary admissibility, does have the potential to turn dynamic at some point in the future.

^[1] Daubert v. Merrell Dow Pharmaceuticals, 125 L Ed 2d 469 : 509 US 579 (1993) referred to in Lakshman Sriram, “Narco-anlysis and Some Hard Facts” 5-5-2007 Frontline, Vol. 24, Issue 9.

^[2] Ms. Snehal S. Shinde, Narco – Analysis – A Tool of Investigation, 3 IJMRD, Aug. 2016, at 298, 298-301.

^[3] Suresh Kumar, Narco – Analysis Test, 4 IJMH, July 2020, at 7.

^[4] Ibid.

^[5] Bannur Muthai Mohan, Misconceptions about Narco – Analysis, IJME, Jan.–Mar. 2007, at 7.

^[6] Brain Electrical Activation Profile Test.

^[7] See generally Macdonald John, Narcoanalysis and Criminal Law, 111 Am J Psychiatry, Oct 1954, at 283, 288.

^[8] Multifaceted Electroencephalographic Response.

^[9] A.S. Dalal & Arunava Mukherjee, Constitutional and Evidentiary Validity of New Scientific Tests, 49 JILI 529, 529-531 (2007). 

^[10] Ed Pilkington, Judge approves use of ‘truth serum’, The Guardian, (Mar. 12, 2013, 08:13 PM), https://www.theguardian.com/world/2013/mar/12/judge-approves-truth-serum-james-holmes.

^[11] Miranda v. State of Arizona, 384 US 436 (1966). 

^[12] Townsend v. Sain, 372 US 293 (1963).

^[13] 116 NJ 580 : 562 A. 2d 1320 (1989).

^[14] 531 US 32 (2000).

^[15] Chambers v. Florida, 309 US 227, 240-241 (1960) 84 L. Ed. 716, 724.

^[16] L. Ed. 2d 653 : 378 US 1 (1964)

^[17] David A. Sadoff, Bringing International Fugitives to Justice: Extradition and its Alternatives 296-297 (Cambridge University Press 2016)

^[18] The Legal Prohibition against Torture, Human Rights Watch, (Jun. 1, 2004, 03:51 PM), https://www.hrw.org/news/2003/03/11/legal-prohibition-against-torture.

^[19] “No person accused of any offence shall be compelled to be a witness against himself.” 

^[20] Dastagir v. State of Madras, AIR 1960 SC 756.

^[21] Ibid.

^[22] R. v. Leatham, (1861) 8 Cox CC 498.

^[23] 2004 All MR (Cri) 1704

^[24] Selvi Murugeshan v. State of Karnataka, (2004) 7 Kant LJ 501.

^[25] Supra note 20.

^[26] D.K. Basu v. State of W.B., (1997) SCC (Cri) 92.

^[27] M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.