Narco-Test Analysis has been an intensely discussed subject within the legal community, the media, and the general public. With the invention of modern investigative techniques, including Narco-Test Analysis, criminal investigation has been affected to varying extents.
Narco-Test Analysis usually involves interviewing a suspect by a mix of standard and case-specific questions after injecting a person with a specific substance (sometimes called the “truth serum”) that induces an altered state of consciousness in which the subject of the test supposedly speaks the truth.
Narco-Test Analysis is a scientific method of inquiry in which a declaration from the accused is collected that can be used as evidence. There also are other procedures like polygraph (aka lie detector) test, brain mapping, etc. The Evidence Act is silent on the permissibility and use of experimental procedures such as these. Such new-age procedures have often been criticised as violating the tenets of the Constitution but have also been defended as essential in specific situations, to get effective results. Narco-Test Analysis and other such investigative techniques present a variety of problems at the intersection of law, medicine, and ethics.
Does the Narco-Test Analysis protocol infringe on the right against self-incrimination provided by Article 20 (3) of the Constitution? This question made headlines recently when it became the focal point of a storm and sparked a debate when the media focused on the issue of the Hathras rape case in Uttar Pradesh.
The use of narco-analysis, brain mapping, and lie detector tests against the accused's will are considered as a violation of Article 20(3) of the Constitution. In State of Bombay v. Kathikalu (1962 SCR (3) 10), it was held that it must be shown that the accused was forced into making statement(s) that was/ were likely to lead to self-incrimination. Narco-Test Analysis is said to be psychiatric torture, and therefore violates the Right to Life under Article 21. The right against forced self-incrimination is enshrined in the Indian Constitution and the Code of Criminal Procedure (Cr PC).
The accused have the right to remain silent – this principle was laid down in Nandini Sathpathy v. P.L.Dani. (AIR 1978 SC 1025) in which she argued that Article 20(3) of the Constitution granted her the right to remain silent. The word "Right to Privacy" is a catch-all phrase that refers to a variety of rights that are known as intrinsic concepts or ordered liberty. The right to privacy is the right of a person to be left alone and to be protected from unwarranted publicity.
The Indian Law of Evidence has no clear direction on admissibility of information obtained through Narco-Test Analysis. The test results cannot be admitted as standalone evidence because the subject lacked control over his responses during the test.
The question then becomes whether or not the findings of a Narco-Test Analysis, brain mapping and similar tests can and should be considered as evidence. According to a joint reading of Sections 24 to 27 of the Act, such statements would be inadmissible as proof and made useless if there was even the slightest suggestion of coercion, intimidation, or any other kind of control. Section 24 of the Indian Evidence Act makes inducement, intimidation, or promise-induced confessions inadmissible. When an accused is subjected to the Narco-Test Analysis examination, he has no power over his conscious mind, and is forced to answer questions against his will. Such confessions are impliedly made inadmissible in a court of law. Section 25 of the Indian Evidence Act also applies to admissions made in the presence of representatives of the institution performing the operation and the police.
The Supreme Court ruled in the case of Selvi v. State of Karnataka (AIR 2010 SC 340) that a Narco-Test Analysis on an accused person cannot be performed without the accused person's permission. It would be a breach of Article 20(3) of the Indian Constitution if such an examination was performed on the accused person. The Court also ruled that this examination should be done in the presence of an expert. In the current case, it was determined that test results alone cannot be admitted as facts, since the respondent does not exercise deliberate control over the responses during the administration of the test. However, any facts or material found later with the aid of voluntary administered Narco-Test Analysis results may be admissible under Section 27 of the Indian Evidence Act, 1872.
The Bench also reiterated the National Human Rights Commission's Guidelines for the Administration of Polygraph Tests (Lie Detector Tests) on an accused (issued in 2000) and stressed the importance of adhering to them. Briefly, they are as follows:
1. The accused should be given the option of taking Lie Detector Tests. Only after the accused has consented to such a test will it be performed.
2. If the accused refuses to take the test after being given the choice, he should have access to a lawyer. The lawyer and police should clarify the physical, mental, and legal ramifications of the test to him.
3. The accused's consent should be registered in front of a Judicial Magistrate.
4. If the accused has agreed to take the lie detector exam, he or she must be represented by a lawyer at the trial before the Magistrate.
5. During the hearing, the accused person must be informed in no uncertain terms that any comments he makes would not be deemed "confessional statements" to the Magistrate, but rather in the nature of statements made to the Police.
6. The Magistrate is required to weigh all factors pertaining to the accused's detention, including the duration of such detention and the type of questioning.
7. The actual Lie Detection Examination protocol must be carried out by an independent entity, such as a hospital, and must be fully reported. The operation must be carried out in the presence of an advocate.
8. The information collected, as well as the complete medical and accurate narration of it, must be recorded.
Rajesh is a qualified CA & CWA. He has served as a Director of PricewaterhouseCoopers, a Director of a large urban co-operative bank and Dean of a B-School over the years. He has taught Finance for over 20 years & trained participants from several Companies and B-Schools. He is an educator and a learner (he believes both are inextricably intertwined), and a knowledge product developer. Law Gyani, which he has founded to help Law Students with their exam preparations, and to understand nuances of the law.
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