A few democratic countries, India most notably, still continue to use narco analysis. This has come under increasing criticism from the public and the media in that country. Narco analysis is not openly permitted for investigative purposes in most developed and/or democratic countries. In India, the narco analysis test is done by a team comprising of an anesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer, and supporting nursing staff. The forensic psychologist will prepare the report about the revelations, which will be accompanied by a compact disc of audio-video recordings. The strength of the revelations, if necessary, is further verified by subjecting the person to polygraph and brain mapping tests.
Narco analysis is steadily being mainstreamed into investigations, court hearings, and laboratories in India. However, it raises serious scientific, legal, and ethical questions. These need to be addressed urgently before the practice spreads further. Narco analysis has become an increasingly, perhaps alarmingly, common term in India. It refers to the 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 killers and the Mumbai train blasts, suspects have been whisked away to undergo an interview drugged with the barbiturate sodium pentothal.
Narco Analysis from Constitutional & Legal Stand Point-
The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3). It deals with the privilege against self-incrimination. It has its equivalents in the Magna Carta and the law of almost every civilized country. The privilege against `self incrimination is a fundamental canon of Common law criminal jurisprudence.
The characteristic features of this principle are-
-The accused is presumed to be innocent,
-That it is for the prosecution to establish his guilt, and
-That the accused need not make any statement against his will.
-These propositions emanate from an apprehension that if compulsory examination of an accused were to be permitted then force and torture may be used against him to entrap him into fatal contradictions. The privilege against self-incrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice.
Art. 20(3) which embody this privilege reads, "No person accused of any offence shall be compelled to be a witness against himself".
On analysis, this provision will be found to contain the following components:
-It is a right available to a person "accused of an offence";
-It is a protection against such "compulsion" "to be a witness";
-It is a protection against such "compulsion" resulting in his giving evidence against himself.
All the three ingredients must necessarily coexist before the protection of Art
20(3) can be claimed. If any of these ingredients is missing, Art. 20(3) cannot be invoked.
The application of narco analysis test involves the fundamental question pertaining to judicial matters and also to Human Rights. The legal position of applying this technique as an investigative aid raises genuine issues like encroachment of an individual's rights, liberties and freedom.
Section 45 of the Indian Evidence Act, 1872 does allow experts' opinions in certain cases.
However this section is silent on other aspects of forensic evidence that can be admissible in court in criminal proceedings.
The right against forced self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal Procedure (CrPC) and the Indian Constitution.
In the CrPC, the legislature has guarded a citizen's right against self-incrimination.
It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one's mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence.
Some Notable Events & Cases of Narco Analysis in India-
I. In a 2006 judgment (Dinesh Dalmia v State), the Madras High Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said about the accused: "he may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary."
II. In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: "No person accused of any offence shall be compelled to be a witness against himself." Statements made under narco analysis are not admissible in evidence.
III. In January 24th, 2008, a bench of Chief Justice K.G. Balakrishnan reserved its ruling after hearing arguments for three days from various parties, including Solicitor General Goolam E. Vahanvati and senior advocate Dushyant Dave, appointed by the bench as amicus curiae to assist the court in the case.
Telgi and his accomplices are facing probe by various states' police and other investigative agencies for their alleged criminal acts.
These accused people have challenged the legality of the use polygraph, brain mapping and narco-analysis by the investigative agencies to probe the crime.
IV. The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra, upheld the legality of the use of P300 or Brain finger-printing, lie-detector test and the use of truth serum or narco analysis. The court upheld a special court order given by the special court in Pune as mentioned above, allowing the SIT to conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul Karim Telgi. The verdict also said that the evidence procured under the effect of truth serum is also admissible. In the course of the judgment, a distinction was drawn between "statement" (made before a police officer) and "testimony" (made under oath in court). The Judges, Justice Palshikar and Justice Kakade, said that the lie-detector and the brain mapping tests did not involve any "statement" being made and the statement made under narco analysis was not admissible in evidence during trial. The judgment also held that these tests involve "minimal bodily harm".
V. A court in Kerala recently pronounced that no court order is required to do a narco analysis, Disposing of a petition filed by the CBI seeking permission of the court, the magistrate said that filing this type of a plea would only delay the investigation. The court said nobody could stand in the way of the investigating agency conducting tests recognized as effective investigation tools. When the technicalities of the test itself are not clear and uniform, it becomes difficult to accept the stand taken by the court.
The Degree of Admission of These Truth Finding Tests in Court-
Lawyers are divided on whether the results of Narco Analysis and P300 tests are admissible as evidence in courts. "Confessions made by a semi-conscious person is not admissible in court. A Narco Analysis Test report has some validity but is not totally admissible in court, which considers the circumstances under which it was obtained and assess its admissibility," advocate P. R Vakil told rediff.com. "Under certain circumstance, a person may hold a certain belief. By repeatedly thinking about an issue in a particular way, he begins to believe that what he is thinking is right. But it need not necessarily be the truth," Vakil explained." Results of such tests can be used to get admissible evidence, can be collaborated with other evidence or to support other evidence. But if the result of this test is not admitted in a court, it cannot be used to support any other evidence obtained the course of routine investigation."
Criminal lawyer Majeed Memon said, "If the courts give permission to conduct these tests, then only it can decide the admissibility of the test results and other related evidence. Such reports can be used as evidence or to support other evidence." Another criminal lawyer Sham Keswani has a different view. "Such tests don't have any legal validity. They can only assist the police investigation." But, in case a person is not affected by the chemical, he might take some wrong names (to mislead investigators). The results of such tests can be used to support other evidence," he said.
Law is a living process, which changes according to the changes in society, science, ethics and so on. The Legal System should imbibe developments and advances that take place in science as long as they do not violate fundamental legal principles and are for the good of the society. The criminal justice system should be based on just and equitable principles. The issue of using narco analysis test as a tool of interrogation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be clearer in the near future. In a situation where narco analysis is gaining judicial acceptances and supports despite being an "unreliable & doubtful" science, we have to seriously rethink about its legal and constitutional validity from human rights perspective.