The word narco-analysis was derived from the Greek word ‘narke’ which means ‘anaesthesia’ or ‘torpor’. The earliest record of narco-analysis being used dates back to 1922, when a Texas obstetrician used a drug called scopolamine on two prisoners. The intention was to induce a trance-like state wherein the prisoners are then subjected to various inquiries. This test is sometimes referred to as the truth serum test.
ADMISSIBILITY OF NARCO-ANALYSIS IN COURT
A narco-analysis test while not completely admissible in court depending on the assessment of the circumstances under which it was obtained has some validity. Results of such tests can be used to get admissible evidence. The National Human Rights Commission laid down guidelines to the effect that consent from an accused, witness or suspect should be obtained before a Magistrate, and that an investigative agency cannot take the reins in administering the test whenever they deem appropriate.
The Supreme Court in the case of Selvi v. State of Karnataka[i] ruled that conducting a narco-analysis test without the consent of the accused would be in direct violation of Article 20(3) of the Constitution and further held that an expert should be present when administering the test. While in the case of Nandini Sathpathy v. P.L. Dani[ii] it was laid down that Article 20(3) can be waived off by the subject that is to undergo the narco-analysis test. The court granted the investigative agencies authority to administer the test with the mandatory presence of an expert and added that the confession statement comes under the purview of Section 25 of the Evidence Act. Similarly, in the case of State of A.P v. Inapuri Padma[iii], the Andra Pradesh High Court held that if the subject captured but not charged is willing to undergo the test, then the authorization of the court is not required. But if the subject does not provide consent, then it is up to the investigative agencies to persuade the courts on the probability that the subject knows something about the commission of the offence.
The application of this test has been widely debated on the grounds of it being an encroachment of an individual’s rights. Some argue that subjecting an accused to undergo the test blatantly violates Article 20(3) of the Constitution and that the court should reject any confession that is derived from compulsion, be it under hypnotic state of mind. Article 20(3) of the Constitution read with Section 161(2) of Code of Criminal Procedure, 1973 protects the accused during the course of the investigation. Right to silence as claimed under Article 20(3) of the Constitution and Section 161(2) of CrPC was granted to the accused in the case of Nandini Sathpathy v. P.L. Dani[iv]. It was laid down that by the administration of these tests, investigative agencies are extracting statements from the accused who has the right to keep silent and that forcibly intruding into the accused mind should nullify the validity of the right to keep silent.
The Supreme Court in the case of Kalwathi v. H.P. State[v] held that Article 20(3) does not apply if a confession is procured without an inducement, threat or promise. The Madras High Court, in the case of Dinesh Dalmia v. State[vi] was of the opinion that investigative agencies may resort to conducting scientific tests if an accused is not truthful. It was further held that only if the accused self-incriminates will Article 20(3) apply, but any information besides that can still be useful for the investigation. The court said that “he (accused) may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary”. Therefore, the test need not be prohibited on the grounds of constitutional violation.
On one hand people argue that narco-analysis violates basic principle of the Constitution that provides protection against self-incrimination. On the other hand, arguments are raised stating that law should catch up to the evolution of science as these tests serve as the last resort in cases where there is no direct evidence.
The Supreme Court, in the case of Som Prakash v. State of Delhi[vii] recognized that revolutionary tools of forensic science are necessary for investigation. In the case of Rojo George v. Deputy Superintendent of Police[viii], the Kerala High Court was of the opinion that modern medicine is subject to adverse reaction and that experts take all the required precautions before administering a scientific test. Use of such a technique cannot be condemned due to a remote possibility of said reaction. It was further held that the only way to contend with present day criminals that use advanced techniques to commit crime, is by in return using advanced techniques such as a narco-analysis test. Similarly in the case of Ramchandra Reddy and Others v. State of Maharashtra, the Bombay High Court upheld the legality of the evidence that was obtained as a result of narco-analysis test. The court was of the opinion that investigative agencies will greatly benefit from the modern and scientific detection tests like narco-analysis.
Arguments have gone as far as to say that narco-analysis test violates an individual’s right to privacy under Article 21 of the Constitution. Studies that have been conducted by medical associations show that an individual in a trance state under the influence of the truth serum may likely give incorrect or misleading responses. Protection against torture or cruel, inhuman and degrading treatment is implicit in Article 21. It has been argued that due to the unpredictable and invasive nature of the truth serum, subjecting an individual to go through the procedure is in violation of Right to Privacy. Article 21 provides for immunity from invasiveness and Article 20(3) from self-incrimination; they must be read together. Until there is a law which is reasonable, just and fair for the admission of scientific tests, it will be considered an intrusion of Fundamental Rights and therefore unconstitutional.
The bottom line is that the narco-analysis test has no rules and guidelines. For every High Court that validates the test, the Supreme Court invalidates it by interpreting Article 20(3) and 21 of the Constitution.
ENDNOTES: [i]AIR 2010 SC 340 [ii] AIR 1978 SC 1025 [iii] (2008) Crl. LJ 3992 [iv] AIR 1978 SC 1025 [v] (1953) AIR 131, 1953 SCR 546 [vi] (2006) Cri. LJ 2401 [vii] (1974) 4 SCC 84 [viii](2006) 2 KLT 197