For any state, protection from crime and the preservation of law and order becomes the highest priority to ensure collective wellbeing and maintenance of social and individual interests. In contemporary times, crime rates have massively increased while the conviction rate remains below par. The primary cause of this phenomenon is the sustained use of static and conservative investigative methods. However, with the amalgamation of ‘forensic science’ with law, detection deception tests like ‘narco-tests’ have come to the public eye and gained immense popularity. This paper analyses three broad dimensions of the narco-test; their constitutionality and legal validity of narco-tests; their evidentiary value of narco-tests in the court of law, and their implication in criminal law.
Narco-tests, Article 20(3), Indian Evidence Act, 1872, self-incrimination, compulsion.
With the advent of globalisation and the shift towards digitalisation, there has been a colossal growth of technology in the myriad of modern sectors, to which the Indian judicial system is no exception. To adapt to such changing times, the judiciary has increasingly relied on forensic science. The integration of science and law has gained relevance in the contemporary context as criminal activities become more complex. Advanced technologies help criminals hide their tracks; law enforcement often resorts to primitive investigatory methods to discourage deterrence. To overcome these hurdles, the concept of ‘Deception Detective Tests (DDT’s)’ is now in the public limelight with various experts recommending the usage of DDT’s in the criminal justice system. The Narco-analysis test or the ‘Narco-test’ is also one of the byproducts of DDT’s, which aims to retrieve concealed information known only to oneself.
Decoding the Narco-Analysis Test:
J.S Horsley coined the term ‘narco-analysis,’ originating from the Greek word “Narkotikos” meaning ‘numbness’ or ‘torpor.’ In simpler terms, it describes a psychotherapeutic technique that uses psychotropic drugs administered by practitioners to put the subject in a sleep-like-state, repressing feelings, emotions and thought. The narco-test is carried out by administering a drug called ‘Sodium Pentothal’ intravenously to the antecubital vein, over 3 hours. The individual slowly enters a ‘semi-narcotic state’ and is kept in this state throughout the interrogation process. The interrogation is conducted by a forensic psychologist or a practising psychiatrist with the entire procedure videotaped. Once the individual is awake, they are entitled to know what was said during the interrogation. The underlying assumption behind the working of the test is that the cortical part or the upper part of the brain is used to modify one’s response to stimuli, i.e., to lie one must influence this cortical part of the brain. However, such a class of drugs are known as central nervous system depressants, that disorient an individual’s brain functioning and make it difficult to lie. In the Indian context, the judiciary follows the principle of the ‘adversarial model’ which necessitates the investigating agencies to provide evidence before the court, based on which a judgment is held. Thus, the admissibility of narco-tests as evidence aids in proving an individual “guilty beyond reasonable doubt”. So, what is the legality of narco-tests in India?
Demystifying the Legality of Narco-Tests in India:
A) The Standpoint of the Indian Evidence Act:
In India, the narco-test caught public interest in 2002, when it was first performed by the Bangalore Forensic Science Lab. In the Godhra Carnage case, wherein seven suspected individuals were examined due to their alleged involvement in burning down a train coach of Sabarmati express leading to the death of 58 Hindu pilgrims. To understand the evidentiary value of narco-tests, one must look into the Indian Evidence Act, 1872 which defines ‘evidence’ under Section 3 (S.3) to include oral and documentary pieces of evidence. The dilemma of the legality of narco-tests arises when we consider the combined effect of S.24 to S.26 of the act. S.24 primarily holds that confessions made by coercion or ‘threat’ are rendered void. Similarly, S.25 holds confessions made to police officers void. When implied in the context of narco-tests, one may observe that during the narco-test, an individual has no control of their mind, which makes them respond against their free will, thereby making their statements ‘self incriminatory’. Criminal jurisprudence holds that self-incriminatory statements cannot be proven against the accused. Another point to note is that the procedure is carried out under the supervision of law enforcement officials, thereby attracting S.25 and rendering the accused prone to threats. These provisions bar the admissibility of narco-test reports. Statements collected in such interrogation are made in a semi-conscious state that repudiates the jurisprudence of confessions in a sound state of mind. This conundrum was resolved in Selvi & Ors. v. the State of Karnataka, wherein the Supreme court held that the narco-test may only be conducted after their consent is given. This ensures that any statements made would not be recorded ‘against his free will;’ and the possibility of coercion is nullified.
B) Through the Lenses of the Indian Constitution:
Constitutionally speaking, the legal validity of narco-tests is challenged by Article 20 (3) of the Indian constitution. Article 20(3) invokes protection against self-incrimination and restricts an accused from being compelled to be a “witness against himself.” To seek respite under Article 20(3), the following elements must be fulfilled:
1) The individual is accused of committing the offence.
2) It is used as a medium of protection against compulsion to be a witness.
3) It is a protection against such compulsion of which his giving of evidence would be self-incriminatory.
Considering this provision alongside the concept of narco-tests, one can deduce that there is a blatant violation of Article 20 (3). Furthermore, to practically establish this conclusion, one can refer to The State of Bombay v. Kathi Kalu Oghad & Ors. Wherein, the Supreme court interpreted the principle of “Nemo tenetur seipsum prodere- No man is bound to accuse himself” before holding that Article 20 (3) solely forbids compelling an accused to state personal knowledge that could then be used against him. The primary modus operandi of the test solely depends upon the suppression of an individual’s reasoning power to retrieve the ‘concealed truth.’ This truth comes from the individual's own mind- his personal knowledge. Thus, any information congregated from the narco-test which undermines the accused’s stance, renders self-incriminatory.
Another hurdle to the legality of narco-tests in the contemporary context is Article 21 of the Indian Constitution. Essentially, narco-tests invade and infringe upon the privacy of the mind. Furthermore, Article 21 of the Indian constitution also upholds the “right to life and personal liberty”. Some of the world's most advanced economies infamously coin narco-tests as a form of ‘torture’ as it is an indirect mental assault through the administration of ‘drugs’ that create unrestricted access to one’s mind. While India is yet to ratify the UN Convention Against Torture (UNCAT) and concur with the perspectives of these advanced economies, Article 1 of the Convention perceives torture to be:
1) Mental or physical suffering or degrading treatment.
2) Intentional infliction of mental or physical suffering.
3) An objective behind the infliction of mental or physical suffering.
4) Suffering is being imposed by a competent authority.
When seen through these lenses, one could say that narco-tests indeed violate these principles and a greater need for India to ratify the convention. This is particularly because the interrogation process often involves significant violence against the accused; the individual is vigorously shaken, slapped, degraded, etc., to ensure his presence in the semi-narcotic state and answering of questions. There is immense distress to the cortical part of the brain met with the lucid purpose of attaining information/confession of criminal activity.
Finally, narco-tests are conducted through competent and legitimate law enforcement agencies. In Nandini Satpathy v. Dani (P.L.) & Anr., the Supreme Court held that a ‘compelled testimony’ is not admissible in the court of law. This is further not restricted to the mere physical threat but also extend to mental or psychic torture/threat, environmental coercion, tiring interrogative intimidation or prolixity, etc. Additionally, the narco-test may have detrimental effects in cases of incorrect anaesthesia dosages, which may lead to coma or brain death. This contributes to the violation of Article 21, as the right to health has also been held as a fundamental right in the case of the State of Punjab v. Mahinder Singh Chawla.
C) Gnomic Legality of the Narco-Test:
Despite the various legal hurdles the conduct of narco-tests faces, certain cases have been allowed and the evidence procured admissible in the court of law. In the case of Ramchandra Ram Reddy v. the State of Maharashtra, the Supreme Court upheld the legality of narco-tests and admitted the evidence procured through the test. Justice V.G Palshikar stated that, with technological advancements and modernity, the crimes are increasingly convoluted, with new technologies inculcated every day. Thus, the use of narco-analysis to detect criminal conduct would play an important role; there is a better opportunity cost than third-degree treatment, which involves more significant bodily harm. In conclusion, one can understand that even after decades of judicial pronouncements varying across different cases, there is no conclusive opinion or law on the legality of narco-tests and their evidentiary value in the court of law. This facet merely depends upon ‘conditional utilization’ i.e. the court’s discretion to conduct such DDT’s with consent and adequate safeguards.
Implications of the Narco-test in Criminal Law:
After analyzing the ambiguity of the legal validity of narco-tests in criminal jurisprudence, one must now understand the rising implications if narco-tests were wholly integrated into criminal law. In the contemporary context, where illegal activities are on a rise, it becomes crucial for the justice mechanism to inculcate the latest technologies, such as narco-tests to ensure “justice is served”. The traditional interrogation model can sometimes lead to gruesome bodily injury, which goes against ethical standards and violates human rights; narco-tests remove this blot when conducted appropriately. In exceptional circumstances, experts believe that narco-tests aid investigative agencies in discovering conclusive pieces of evidence that help in detecting and solving crimes for the greater public interest. Lastly, the ethos of “justice delayed is justice denied” is maintained as narco-tests help garner ‘solid leads', facilitating the corroboration of evidence.
Despite the various benefits accrued by integrating narco-tests into criminal law, there is a myriad of shortcomings. This is particularly evident in cases where the subject has a substance addiction, which means that the dosage needed to maintain a semi-narcotic state would be rather unpredictable. Furthermore, the reliability of information would be under-shadowed. The legal and constitutionality issues arising from the conduction of narco-tests have always been the subject of global scrutiny. Within the Indian Constitutional framework, it blatantly violates Article 20 (3). Furthermore, Section 161 of the Criminal Procedure Code gives an individual the right to remain silent when asked questions that tend to incriminate them. However, during the narco-test, the individual’s ‘right to remain silent’ would cease to exist as they have no control over their speech. Lastly, despite minimal bodily harm, the narco-test remains third-degree mental torture. From such an analysis, one can conclude that narco-analysis has its merits and demerits, which can have serious implications in criminal law. However, I believe we should welcome this concept into the criminal justice system with certain restrictions that will ensure that their conduction complies with the social paradigm.
Conclusion: What must be done moving forward:
With proper regulation and stringent guidelines, the narco-test can revolutionize the investigation procedure and administration of justice. Some reforms which may be implemented to ensure narco-tests are in accordance with the social paradigm are suggested here. The test must be conducted by forensic experts who have adequate experience in the field to prevent any loss of life. It must be ensured that the ethos of ‘right to a fair trial’ is maintained and that there is no tainting or abuse of such DDT’s. The Executive may define the necessity to adopt such tests, i.e., resort to narco-tests only as a last resort. Investigative agencies must ensure that their scientific medium of investigation does not encroach upon the realm of human rights. Finally, to facilitate a system of checks and balances, the National Human Rights Commission (NHRC) should be empowered with greater authority concerning such investigatory violations.
In conclusion, we can maintain a stance that the legality of narco-tests is still in its nascent stages. The law is a ‘living process’ that changes over social, technological, and ethical requisites. The Indian justice system should integrate the advancement in sciences while keeping in mind the fundamental legal principles for the overall benefit of society. The Honorable Supreme Court must take a lucid stance, similar to their judgment in Aruna Ramchandra Shanbaug vs Union Of India, where it held passive euthanasia constitutional. Lastly, despite the ‘conditional stance’ of the court concerning narco-tests, the final constitutional status will lie in its ability to blend with the scope of Article 20 (3) of the Indian constitution.
[*] Samrudh Kopparam is a second-year student at Jindal Global Law School, Sonepat, India.
The views expressed are personal. The authors conducted this research during their internship at the Syin & Sern Law Review.
Preferred Citation – Samrudh Kopparam, “Examining the Narco-Test Jurisprudence Constante and its Implication in the Indian Judicial System", Syin & Sern Law Review, Published on 18th November 2021.