“NARCO ANALYSIS TEST” AND ITS LEGAL POSITION IN INDIA.

Narco Analysis

The term “narco-analysis” comes from the Greek word “marks,” which means “anaesthesia” or “torpor,” and it refers to a diagnostic and psychotherapeutic approach that uses psychotropic drugs, particularly barbiturates, to induce a coma in which mental elements with strong associated affects emerge, where they can be used by the therapist. Horseley is credited with creating the phrase “narco-analysis.” 

Under the history of police investigation, physical coercion has sometimes been used instead of meticulous and time-consuming research in the mistaken idea that direct techniques provide fast findings. New investigative techniques have given rise to scientific questioning methods like the narco analysis test. 

The term “Narco Test” refers to the practise of giving barbiturates or other drugs, most often Pentothal Sodium, to a person in order to reduce their inhibitions and encourage more open communication. It is possible for someone to lie simply utilising their imagination. By interacting with the subject’s nervous system at the molecular level, the narcotic analysis test lowers the subject’s inhibitions. He finds it harder to lie in this condition, but it’s still doable. In this somnambulistic condition, attempts are undertaken to learn the crime’s conclusive facts. In the controlled environment of a laboratory, experts administer hypnotics like sodium pentothal or sodium amytal to a participant. The dosage is determined by a person’s age, sex, health, and physical condition. 

When under hypnosis, the patient is unable to communicate on his own but is able to respond to straightforward questions after being given some recommendations. Since a semi-conscious individual cannot influence the replies, it is thought that they are spontaneous. The investigating authorities then question the person in front of the medical professionals. These insights are captured on video and audio cassettes at this phase. The report that the experts produced is what is utilised to gather evidence. Following the issuance of a court order, this practise is carried out in government hospitals. Additionally necessary is the subject’s express permission. 

These tests are a consequence of scientific advancements, but they often cast doubt on fundamental human rights as well as the validity of the tests themselves. Their legality is contested, with some arguing for it under the guidance of legal ideas and others rejecting it as blatantly violating constitutional rights. 

The basic issue relating to legal issues and human rights is involved in the implementation of the narco analysis test. The legality of using this approach as an investigative assistance presents important concerns, such as the invasion of a person’s rights, freedoms, and freedom. Many people believe that subjecting the accused to the test, as the investigating authorities in India have done, is a flagrant breach of Article 20(3) of the Constitution.

Additionally, it violates the dictum Nemo Tenetur se Ipsum Accusare, which states that no one, not even the accused, may be forced to respond to any inquiry that would serve to establish his guilt for the offence for which he has been charged. The court should reject the accused’s confession if it was obtained under any kind of physical or moral duress. 

Indian Constitutional and Legal Provisions Regarding Narco-Analysis

Similar to confessions, narco-analysis tests are often not admissible in court since they are performed on a semi-conscious subject. However, the court has the discretion to award restricted admission after taking into account the testing environment. It would be unlawful to conduct narcoanalysis, brain mapping, or lie detector tests against the accused’s consent in accordance with Article 20 (3) of the Constitution. The Indian Constitution’s Article 20 contains the fundamental clause governing criminal prosecution and inquiry (3). The privilege against self-incrimination is discussed. In common law criminal jurisprudence, the protection against “self-incrimination” is a basic principle. This right is codified in Art. 20(3), which reads, “No person accused of any wrongdoing will be required to be a witness against oneself.” Many believe that subjecting the accused to the test, as the Indian investigating authorities have done, is a flagrant breach of Article 20 (3) of the Constitution.

The main issue including legal issues and human rights is involved in the administration of the narco-analysis test. The legality of using this approach as an investigative assistance presents important concerns, such as the invasion of a person’s rights, freedoms, and freedom. In the case of State of Bombay v. Kathikalu3, it was decided that proof of the accused’s being forced to make a statement that may be used against him must be provided. Compulsion is defined as being under pressure, which includes assaulting, threatening, or imprisoning a spouse, parent, or kid. Therefore, art. 20(3) does not apply when the accused confesses voluntarily and without being coerced, threatened, or promised anything. As a result, the privilege against self-incrimination makes it possible to uphold civilised norms in the administration of justice as well as the preservation of individual privacy.

The Code of Criminal Procedure (CrPC) and the Indian Constitution both recognise the prohibition of being compelled to testify against oneself, sometimes known as the Right to Silence. The legislature has protected a citizen’s right against self-incrimination in the CrPC. Every person “is required to respond honestly all inquiries, presented to him by a police officer, other than questions the answers to which would have a propensity to subject that person to a criminal accusation, punishment, or forfeiture,” according to S.161 (2) of the Code of Criminal Procedure. Narco-analysis is said to be mental torture that breaches Article 21’s right to life since it interferes with the individual’s right to privacy. Again, the legislation against invasion of personal privacy prohibits the use of brain fingerprinting as evidence in court.

Due to the ruling in the case of Nandini Sathpathy v. P.L. Dani4, which said that an accused person has the right to remain quiet during an interrogation, the accused has been awarded the right to silence (investigation). By implementing these tests, violent mental intrusion is being brought back, invalidating the Right to Silence’s legitimacy and validity. She asserted that she was entitled to quiet under Article 20(3) of the Constitution and Section 161(2) of the Criminal Procedure Code. Her appeals were upheld by the Apex Court. Additionally, tests like narco-analysis are not seen to be highly trustworthy. Studies conducted by numerous medical groups in the US support the theory that truth serums do not produce honest remarks and that people may provide incorrect or misleading information while under the hypnotic influence of the truth serum. The Supreme Court noted in M.P.Sharma v. Satish Chandra that the protection extends to coerced evidence acquired outside of the courtroom since the terms “to be a witness” and not “to appear as a witness” were used in Article 20(3).

The phrase “Right to Privacy” is a general phrase that refers to a variety of rights that are acknowledged as being an inherent idea or ordered liberty. The right to privacy includes the right to be left alone as well as the freedom from undue publicity. 6 The right to life and liberty that India’s inhabitants are guaranteed by article 21 of its constitution also includes an implied right to privacy. Without his permission, no one may publish anything addressing the aforementioned issues, whether it is true or false, positive or negative. If done so, it would be a violation of the person’s right to privacy and would subject the offender to a lawsuit for damages. The protection of life, liberty, and freedom has been construed consistently throughout the Indian constitution, and Articles 14, 19, and 21 are the finest examples of any constitution going against the right to privacy.

Indian Drug Analysis Practise

Only a few democratic nations, most notably India, still use narco-analysis. In the majority of industrialised and democratic nations, narcoanalysis is not publicly authorised for investigative reasons. Anaesthesiologists, psychiatrists, clinical/forensic psychologists, audio-videographers, and supporting nurses make up the team in India that performs the narco-analysis test. The audio-video recordings on the compact disc that goes with the forensic psychologist’s report regarding the discoveries include audio and video recordings. If required, the suspect is further put through polygraph and brain mapping tests to further confirm the veracity of the disclosures.

Narco-analysis is now being used more often in Indian investigations, legal proceedings, and labs. the decision of an eleven-judge panel in the case of State of Bombay v. KathiKalu Oghad7, where it was noted that self-incrimination entails communicating information based on intimate knowledge of the individual and cannot include just the formal procedure of providing papers in court. In the case of Ram Jawayya Kupar, it was decided that the executive branch cannot violate either constitutional rights and liberties or, for that matter, any other human rights. It was also decided that, in the absence of any legislation, any violation of fundamental rights must be declared unconstitutional.

Admissibility Of Drug Testing In Court

While narco-analysis produced a vast quantity of information, it also raised a lot of problems since some critics expressed a strong feeling of mistrust over the use of serum on the witness in order to extract the truth. Narco-analysis is seen as a resource or help in gathering and bolstering evidence. There are questions as to whether it constituted testimony coercion in the legal system and a breach of human rights, individual liberties, and freedom. Lawyers have differing opinions on whether the findings of the P300 and Narco-analysis tests are acceptable as evidence in court because they contend that confessions made by a person who is semiconscious are not admissible. When a court examines a narco-analysis test result and determines its admissibility, it takes into account the circumstances of how it was acquired. Such test results may be utilised to get admissible evidence, in conjunction with other evidence, or in support of other evidence. However, the outcome of this test cannot be used to support any other evidence gathered during a regular inquiry if it is not allowed in court.

Narco-analysis was first used in India in the Godhra atrocity case in 2002. It was also covered by the media after the well-known Arun Bhatt abduction case in Gujarat, when the accused refused to submit to a narco-analysis and instead appeared before the NHRC and the Supreme Court of India. When Abdul Karim Telgi was put to the test in December 2003, it was once again in the headlines as part of the Telgi stamp paper hoax. Even though a vast quantity of material was produced in the Telgi case, questions were raised concerning its validity as proof. In the backdrop of the notorious

Nithari village (Noida) serial murders, narco-analysis was in the spotlight. Mohinder Singh Pandher and Surendra Kohli, the two major suspects in the Nithari serial murders, have undertaken drug tests in Gandhinagar, Gujarat.

Critique Of The Drug Analysis Test

Narco-analysis has drawn criticism since it is not always correct. It was discovered that some subjects made completely bogus claims. It should not be used to compare the statement previously made to the police before using drugs since it often fails to extract the truth. It has been shown that a person gave misleading information even after taking medication. If the individual is dishonest or evasive and untruthful, it is of little use. 9 It is exceedingly challenging to recommend the ideal medicine dosage for a certain patient. The drug dosage will vary depending on the subject’s mental attitude, physical constitution, and willpower. An effective narcoanalysis test does not need injection. For it to be effective, a qualified interviewer who has been taught to craft current and insightful questions is needed. A narco-analysis test allows for the recovery of memories that the suspect had lost. If the test is being used to get confessions to crimes, this test result may be in question. Under the influence of narcotics, suspects may purposefully suppress facts or repeatedly provide false accounts of the occurrence. 10 The use of narcoanalysis in criminal investigations is not advised. The application of narco-analysis in medical settings, such as the treatment of mental disorders, may be beneficial. The test should not be utilised in a criminal investigation unless the subject gives permission.

Does The Right To Self-Incrimination Conflict With The Public Interest?

Another perspective on the legality of the narco-analysis test is that while it is meant to gather evidence and aid in investigations, it does not constitute forced testimony. As a result, it does not go against the constitutional clause protecting against self-incrimination. Supporters of the narco-analysis test believe that it is especially helpful when it is necessary to extract information for preventing terrorist offences. However, its use must be evaluated objectively in order to be replaced by the current traditional style of questioning, which has caused police to suffer humiliation, ignominy, and dishonour and undermined the criminal justice system’s credibility. The use of narcotics as a therapeutic tool has the potential to replace barbarous third-degree approaches. However, it is important to take precautions to ensure that the investigating officer does not abuse or misuse this method, and it should be associated with corroborative.

The Supreme Court recently ruled in Selvi v. State of Karnataka12 that using polygraph, brain mapping, and narco-analysis tests on suspects, witnesses, and accused people without their consent is against the law and infringes on their “right to privacy.” This decision was a major setback for investigating authorities.

In a 251-page ruling, a three-judge panel composed of Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and J.M. Panchal stated:

“We believe that no person should be forced to use any of the aforementioned tactics, whether as part of a criminal investigation or for any other reason. It would be an unjustified invasion of personal freedom to do so.

Case Laws

1. Rojo George vs. DSP

Facts: The suspect argued that the planned Narco-Analysis test is particularly troublesome since sodium pentathlon affects the central nervous system, decreases heart rate, and lowers blood pressure. Krishna Pillai, the offender, confessed. But the cops won’t probe that confession. The Investigating Agency collected no information despite the petitioner’s full cooperation throughout Brain Mapping and Polygraph Test. The proper medicine dose depends on age, sex, physical constitution, mental attitude, and willpower, making it difficult to calculate.

Issue: Recording a Narco-Analysis patient’s statement is alleged to violate Article 20(3) of the Constitution as testimonial coercion. Article 20(3) immunity does not include body display or blood donation.

Held: The court ruled that Narco-Analysis is a scientific test performed by subject specialists after taking necessary measures. Modern medication may cause such side effects. Thus, such methods may be used in research despite the distant risk of undesirable reactions.

• KM. Seema Azad vs. U.P

Facts: The primary culprit in the abduction and murder of Faizabad law student Shashi, Vijaysen Yadav, has undergone polygraph and narco-analysis tests. Anand Sen, a BSP MLA, was convicted of murdering Faridabad law student Shashi.

The Test: Faizabad Chief Judicial Magistrate Shailesh Tiwari allowed the police to test at Bangalore’s Central Forensic Laboratory on Friday. Vijay Sen (co-accused) alleged the then minister had illegal encounters with Shashi, who became pregnant, during his Polygraph and Narco Analysis Test. According to Anand Sen, Vijay was ordered to kill her, which worried him. After the event, Anand contacted Vijay Sen and informed him that he had pushed her into a canal, strangled her, and disposed of her corpse in the canal. Anand and Vijay Sen’s calls from Shashi’s murder location confirmed this.

Held: Police detained Mayawati minister Anand Sen after Vijay’s narco analysis and polygraph test testimonies. The Allahabad High Court is considering his bail plea.

Summary

The criminal justice system urgently needs forensic science. Scientific or forensic evidence in criminal cases helps condemn the guilty and exonerate the innocent. Even if 100 offenders are surrendered, one innocent cannot be convicted under Indian law.

With the foregoing goal in mind, submitting a person to narcoanalysis without agreement would violate his individual rights and negate the right-based society.

Most judges and lawyers lack technical training, making scientific evidence in forensic cases difficult. Courts struggle with scientific evidence because they must choose between opposing scientific interpretations.

Law evolves with culture, science, ethics, etc. Science should be used by the legal system if it does not contradict basic legal concepts and benefits society. India’s commitment to individual liberties and a clean criminal justice system depends on the Central government’s narco analysis policy.