Is Narco-Analysis a threat to the right granted by Article 20(3)?
No person shall be wrongly convicted. To convict a person wrongfully of a crime he never committed is one of the gravest injustices in India’s criminal justice system. But the greater concern lies with the fact that no guilty person shall be left free and unpunished since the primary duty of the state is to protect its citizen and there can be no compromise with regard to the same. Criminal investigation or interrogation is the main component of the criminal justice system, to extract the truth from an accused. But is also a known fact that extracting truth from a criminal person is no easy task. Narco–Analysis is a method used in criminal investigation, which involves drugging a person to make the process of extracting truthful answers easier as it disables the person’s mental capacity to lie or make up stories.
The debate on the ethicality and justifiability of narco-analysis tests has been long-standing as its instinctively seen as a breach of one’s privacy as its intrusive of mental space and also violative of one’s right against self-incrimination. Though many courts have affirmed it being compatible with Article 21 of the Constitution on the basis that such a test is conducted with the consent of the person on who the test is to be performed, the concerns regarding it being perilous for one’s right against self – incrimination continues to be a much – discussed topic. Therefore, this article attempts to examine whether narco–analysis test can be considered a threat to one’s rights under Article 20(3) or not.
When a person is accused of a crime, he or she goes through a criminal investigation process by which the information regarding the crime is extracted by the officials through days of cross-questioning, conducting searches, finding witnesses, etc, to collect facts and pieces of evidence against or in support of the person. One of the most important elements is the interrogation of the suspect. And it’s a basic instinct that most criminal suspects would lie to save themselves because obviously, one wouldn’t be giving out information in own case that could go against him. Therefore, it’s next to impossible to read one’s mind and know if one is lying or telling the truth. And here is where with the help of forensic science, unconventional methods of investigation like brain mapping, polygraphs, and narco–analysis tests are employed.
The term Narco–analysis means analysis or psycho-examination that is done using narcotics. The word ‘narco’ is derived from the Greek word narke which means anesthesia or torpor. The combination of drugs administered in narco-analysis is as also called the truth serum as it essentially induces the suspect to speak the truth. The term narco-analysis was first coined by Horosely. In 1916, the use of narcotic medicines was proposed by Arthur Lovenhart, which was found to make it easier for troubled patients to express their message.
Later, a Texan obstetrician, Robert House, popularized the practice of narco-analysis in trials. He had initially started by administering a drug called scopolamine to two convicts, later this practice was mandated during police investigation in the 18th century in the USA, to decide whether a person is innocent or guilty. However, this practice is no more mandatory or imposed like it used to be, but Robert House remains to be known as the “father of truth serum”.
The idea behind the working of a narco-analysis test is that it induces a person to let their guard down and answer without any filter. All humans normally function under the activity of a conscious mind in the waking state. They are completely in control of what they speak, what they think, or how they act when functioning with a conscious mind. Hence active imagination and the capacity to lie also come from conscious thinking. The drugs administered during a narco analysis cuts off the conscious connection and make the person semi-conscious, whereby he loses his control over his thought process and therefore erodes his ability to lie or manipulate the information he gives.
Thus, making it easier for the investigators to extract truthful answers from the suspect. So, often, the suspects end up giving pieces of information or leads that could go against them and help the officials prove them guilty. And it is in this context that the question of narco–analysis test breaching one’s rights against self – incrimination arises.
How is the Narco-Analysis Test conducted?
The narco-analysis test is conducted by injecting the “truth serum”, which mainly constitute of barbiturate drugs. It is prepared by mixing 3 grams of sodium pentothal or sodium amytal and dissolving it in 3000ml of distilled water, the administration of which may vary from person to person on the factors of age, health, medical history, physical condition, etc. This mixture is administered intravenously along with 10% dextrose sugar over a period of three hours. The use of sodium pentothal induces a semi-conscious hypnotic state in the individual, which makes the subject talkative and open, thus making it easier to extract his thoughts, memories, and repressed feelings. This test is conducted in a hospital by the experts under the supervision of an anaesthesiologist, audio-videographer, and psychoanalysts, using the questionnaire prepared by the police officers.
Narco–analysis tests cannot be imposed compulsorily on any individual. It can be done only after receiving the handwritten consent of the person on whom the test is proposed to be conducted and the after the court approves of it. the procedure needs to be explained to the person and it must be done by forensic and medical experts only.
Narco-Analysis and Article 20(3)
Article 20(3) of the Constitution provides for rights against self-incrimination to the accused, which establishes that no person can be compelled to give witness against himself in any case. often it is known that police authorities tend to use third-degree treatment to torture the accused to submission. Not being able to bear the treatment, one is compelled to give in and turn in the information that would against his defense. Therefore Article 20(3) works in protecting the accused in such circumstances. And narco–analysis test essentially bends one’s state of mind to make him speak the truth or give information that he may be concealing to protect himself. So will this not be deemed unconstitutional? We can find out an answer to this by looking at the judgments given by the courts in relevant cases.
In 2010, in the case of Smt. Selvi & Ors vs State of Karnataka, the Supreme Court held forcible conduction of narco-analysis tests is violative of one’s personal liberty under Article 21 and right against self-incrimination under Article 20(3). Hence, if the test is found to be involuntarily administered would come under the definition of “testimonial compulsion” thereby attracting protection under Article 20(3). In the case of Ramchandra Ram Reddy vs The State of Maharashtra, the court specifically dealt with the conflict between the validity of the narco-analysis test and Article 20(3), the court here held that certain statements given under the influence of the test may be admissible in the court provided that they are backed with concrete evidence and not just the statement in itself will form the sole evidence.
In conclusion, we can note that narco-analysis does not really undermine the scope of Article 20(3), as it is done with the consent of the individual, and the statements provided alone aren’t admissible in the courts as sole evidence either. Moreover, many view this as a softer alternative to a torturous third-degree treatment, it cannot be denied that the pros here outweigh the cons, balance is what the courts have established so that the best of both narco – analysis test and the rights under Article 20(3) can be utilized for better functioning of our criminal justice system.