Narco Analysis as an Investigation Tool?

What is Nacro Analysis Test? A person is able to lie by using his imagination. In the Narco Analysis Test, the subject's imagination is neutralised by making him semi-conscious. In this state, it becomes difficult for him to lie and his answers would be restricted to facts he is already aware of. Experts inject the subject with Sodium Pentothal or Sodium Amytal. The dose is dependent on the person's sex, age, health and physical condition. A wrong dose can result in a person going into a coma, or even death. 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.1 What is the Brain-Mapping test? It is a test that maps the brain to reveal 'guilty knowledge.' The brain-mapping test is done to interpret the behaviour of the suspect and corroborate the investigating officers' observation and the suspect's statements. During the tests, forensic experts apply unique technologies to find out if a suspect's brain recognises things from the crime scene that an innocent suspect would have no knowledge of. In a nutshell, experts say the brain fingerprinting test -- as the brain-mapping test is also called -- matches information stored in the brain with information from the crime scene. Studies have shown that an innocent suspect's brain would not have stored or recorded certain information, which an actual perpetrator's brain would have stored.2 What is Polygraph test? Also known as a "lie detector test". Polygraphs are a common part of criminal investigations and background checks. More and more companies, especially government bodies, now require these tests from potential employees. A polygraph is a simple machine that consists of six sensors or "wires" that are attached to the person taking the test. The examiner, known as forensic psychophysiologist (FP), observes a sheet of moving paper and the type of lines drawn on it by a special pen. These lines vary according to the emotional reaction of the subject to the questions, and these signals are recorded on paper3

1 2

http://www.nationmaster.com/encyclopedia/Narco-Analysis ( last time viewed on 12th February, 2014) ibid 3 ibid

SUMMARY OF SELVIS CASE High courts of our country have been upholding and defending such tests since the past decade despite knowing that such tests affected legal reasoning and logic as the scientific evidence had long discredited such tests.4 It was the duty of the Supreme Court to overrule such cases by disagreeing with the reasoning of various High Courts of the country. The High Court while addressing the issue gave less attention towards the potential rights violation under Article 21 of the Constitution of India, which protects the right to life and personal liberty. The major of High Courts did not even address the issue of right to privacy and Narco analysis amounting to torture or cruel, inhuman, or degrading treatment.

The Supreme Court overruled various High Courts in declaring that the administration of Narco analysis, brain mapping, and polygraph tests violated subjects rights against selfincrimination in contravention of Article 20(3) of the Constitution of India. According to that article, No person accused of an offence shall be compelled to be a witness against himself. Mainly, the Supreme Court has disagreed on the reliability/unreliability of the tests, Selfincrimination protections and Substantive due process rights. The Supreme Courts decision was more diverted towards protecting the Constitutional requirements and International Human Rights. Again, the Supreme Court departed sharply from the stance of the lower courts. First, the Court found all three tests to amount to an invasion of privacy by intruding into a subjects mental privacy, denying an opportunity to choose whether to speak or remain silent, and physically restraining a subject to the location of the tests. Second, the Court declared all three tests to amount to cruel, inhuman or degrading treatment because of the mental harm likely suffered and the potential physical abuse by police or prison officials that could result from the responses given. As the Court stated, forcible intrusion into a persons mental processes is an affront to human dignity and liberty, often with grave and long-lasting consequences.5 Further, the High Courts of Karnataka, Bombay and Delhi found that the administration of Narco analysis itself could not violate Article 20(3) because statements could not be known to be incriminating until after the administration of the test. According to these judgments, only if an incriminating statement was in fact made and then admitted as evidence could a potential violation occur.6 The Supreme Court rejected these arguments. First, the Court found that forcing a subject to undergo Narco analysis, brainmapping, or polygraph tests itself amounted to the requisite compulsion, regardless of the lack of physical harm done to administer the test or the nature of the answers given during the tests.31 Secondly, the Court found that since the answers given during the administration of the test are not consciously and voluntarily given, and since an individual does not have the ability to decide whether or not to answer a given question, the results from all three tests amount to the requisite compelled testimony to violate Article 20(3). Even if a person
4

State of Andhra Pradesh v. smt. inapuri Padma and ors., case no. 459 of 2008; Delhi (sh. shailender sharma v.state, crl. wp no. 532 of 2008); Gujarat (santokben sharmanbhai jadeja v. state of Gujarat, special criminal application no. 1286 of 2007)
5 6

Smt. selvi & ors. v. state of Karnataka, criminal appeal no. 1267 of 2004, Supreme Court of India, Ram Chandra Ram Reddy v. Maharashtra, Criminal Writ Petition No. 1924 of 2003 and Sh. Shailender Sharma v. State, Crl. WP No. 532 of 2008

voluntarily agreed to undergo any of the tests at the outset, the responses given during the tests are not voluntary. Overall, the Supreme Court rightly rejected the High Courts reliance on the supposed utility, reliability and validity of Narco analysis and other tests as methods of criminal investigation. This confusion surrounding around the techniques allowed the Court to carry out a thorough analysis of the various constitutional rights at stake, namely rights against self-incrimination and substantive due process rights, a study that the High Courts were unable or unwilling to do.

SELIVIS CASE AND THE SOCIETY The use of Narco analysis as an investigation tool or as evidence is violative of the right to life, liberty and the right against self incrimination which is the fundamental rights given to any person in a criminal trial. Such test can result in miscarriage of justice and conviction of innocent person in a criminal trial as these procedures are unreliable. The society is in danger as such tests may result in misutilization as use of coercive third-degree methods is increasing in our society. It is necessary to keep in mind the interest of the society at large and the need for a thorough and proper investigation, as against individual rights, while ensuring that the individual constitutional rights are not infringed. If these tests are properly considered to be steps in the aid of investigation and not for obtaining incrimination statements, there is no constitutional infirmity whatsoever. Section 53 of the Criminal Procedure Code accords the requisite statutory sanction for conducting these tests. The use of term such other tests in Section 53 CrPC includes in its ambit polygraph, brain-mapping and Narco analysis. Section 24 of the Evidence Act lays down that a confession made by an accused person is irrelevant in a criminal proceeding if the making of such confession appears to the Courts to have been caused by inducement, threat or promise. The section is very clear on the point that a confession obtained by inducement, threat or promise would not be workable. In a Narco analysis test there is definite element of inducement, so not only fundamental rights of a person is violated, conducting this test would be against the spirit of section 24 of the Evidence Act and the result obtained would be irrelevant in a criminal proceeding. A combined reading of Ss.25 to 27 of the Evidence act is that no confession either made to the police or in the custody of police would be proved against a person accused of any offence. It has been held by the Indian Court many a times that the statements made to the police or in the custody are not admissible. These sections read along with S. 32 of the Act bar statements being admissible even if there is the slightest coercion or intimidation. But the same Courts have given a green signal to conduct the Narco analysis tests at the cost of personal liberty of the person on whom the test is conducted which is a clear cut violation of the legal principles and the constitutional values. (In selvis case, he Supreme Court left open the possibility for abuse of such tests when it provided a narrow exception, almost as an afterthought, namely that information indirectly garnered from a voluntary administered test i.e. discovered with the help of information obtained from such a test can be admitted as evidence).

RESEARCHERS VIEWS But at the same time, Fundamental Rights themselves has no fixed content most of them are empty vessels into which each generation must pour its contents in the light of its experience.[Keshavananda Bharati v. State of Kerala. 1973.] The Constitutional principles are the hollow bricks which are to be filled in accordance with the changing needs of the society. Law being a living process changes in accordance with the needs of the society, science, ethics. But this change should be based on the principles of justice and equity. Society has the right to be protected against the dangerous criminals which may be the real threats to the society. No one actually knows whether the suspect is guilty or innocent, Police may try to find the fact by taking measures like these test. If the society has the right to take property, liberty and life for its protection, then society has the right to make, by trained men, the use of such truth serum legal. The fundamental principles of jurisprudence cannot be affected by permitting such test (Right of accused against self-incrimination and Right to remain silent).