Narco-Analysis Test- A Violation of Right against Self-Incrimination

Criminal cases and investigations in recent times have witnessed the emergence of a new investigative technique- the Narco-Analysis test. However, this technique comes with a bag of legal and ethical questions- questions that have been debated for a long time now.

This article reviews the literature of the Narco-Analysis Test in India, how it violates Constitutional Provisions and International Conventions, its scientific inaccuracy, and how it tends to violate the rights of the accused against self-incrimination. Finally, this article seeks to compare the constitutional standpoint of self-incrimination in the United States vis-à-vis India.

Introduction

The term Narco-Analysis has originated from the Greek word ‘narkç’, which means ‘anesthesia’ or ‘torpor’. The term was coined by Horseley, and the concept reached the mainstream in 1922, when Robert House, a Texas obstetrician used the drug scopolamine on two prisoners.

Narco-Analysis depicts a psychotherapeutic method that utilizes psychotropic drugs (like barbiturate) to induce a stupor in which mental elements with strongly associated effects come to the surface, and the therapist then is able to abuse such mental elements.

Yes, I have used the word ‘abuse’, to highlight the magnitude of torture and torment the victim has to go through as a result of such utilization of psychotropic drugs. This technique also lacks veracity, for some persons are able to retain their ability to deceive even in the hypnotic state, while others can become highly suggestible.

Moreover, the accuracy of the Narco-Analysis test is highly erroneous, since investigators may frame questions in a manner that may prompt incriminatory responses.  

In the era of evidence-based medicine, Narco-Analysis Test does not have any significant role in the treatment of any psychiatric conditions. Although this technique is renowned since the Second World War, it has not been supported with adequate research to justify its claim- both legally and ethically.

Narco-Analysis in India- Legal and Constitutional Stand Point

The admissions and confessions, induced out of the subject of the Narco-Analysis Test, do not have any legal validity, for admissions and confessions made by a semi-conscious person are not admissible in court. Apart from admissibility, the main provision regarding a criminal trial and investigation, in the Constitution of India, is Article 20(3).

It deals with the privilege against self-incrimination. The privilege against self-incrimination is a fundamental canon of Common law criminal jurisprudence. Subjecting the accused to undergo the test against his will, is considered to be a blatant violation of Article 20(3). The validity of the Narco-Analysis test was also challenged in Selvi Vs State of Karnataka.

The Supreme Court held that there is a clash between ‘effective investigation’, in order to provide free and fair justice; and individual liberty’, to remain silent. However, the SC went on to observe that in this particular scientific method, the accused is not giving any evidence willingly or voluntarily, therefore it was held to be violative of Article 20(3).

Moreover, the test also goes against the legal maxim ‘Nemo Tenetur seipsum Accusare’, which roughly means ‘No man, not even the accused himself can be compelled to answer any question, which may tend to prove him guilty of a crime.’

A very important exception to the right against self-incrimination was discussed in the case of Nandini Satpathy vs P.L. Dani and Kalawati vs H.P. State, in which the Supreme Court acknowledged the fact that a voluntary statement by the accused can be invaluable in solving a crime, and emphasized that Article 20(3) does not apply at all to cases where the confession is made by an accused without any inducement, threat, promise or coercion.

Many jurists and activists have been arguing, that Narco-Analysis Test is also a violation of Article 21 of the Indian Constitution. The test taken, without consent, which raises certain issues such as:

1. A physical assault on the body by giving injections, and multiple painful stimuli such as slapping, pinching, pushing, hitting, shaking the body, and so forth, to wake a person from the hypnotic state to answer the questions;
2. Mental assault through the effect of the injection on his/her mind.

These issues violate the spirit and essence of Article 21 and thus raise serious concerns about the legality of the test in its entirety.

The Narco-Analysis test also encroaches on the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice. A test, in support of intrusion of privacy of an individual, is thus a violation of Article 21, and the evidence derived out of it shall not be allowed to be given as evidence in a court of law.

Analysis of Section 161(2) of the Code of Criminal Procedure (CrPC)

The right against forced self-incrimination is widely known as ‘Right to Silence’, and is enshrined in the Code of Criminal Procedure (CrPC). The verbatim of Section 161(2)[9] states that:

“Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.”

The first part of this Section requires the accused to answer all the questions truthfully. However, simultaneously, this Section protects the person from answering questions which would, or which have the potential, to later incriminate the person himself. The person has the full right to remain silent. No amount of compulsion or force shall be imposed on the person.  

In Pakala Narayan Swami Vs  Emperor, the question of the ambit of ‘person’ in the verbatim of this Section was raised. The Court held that the word ‘person’ includes any person who may be accused subsequently in a particular case.

This would imply that a person, whether accused or having the possibility to be accused at a later stage in a proceeding, has full authority to exercise these rights in order to protect his interests. This gives a wide and extensive connotation to this Section, and hence Article 20(3) read with this Section provides a proper blanket of Constitutional protection to the accused- thereby making the test void.

International Conventions and Covenants against Self Incrimination

Human rights activists all over the world have been avidly protesting against the use of narco-analysis to extract information. They have branded the narco-analysis test as a ‘psychological third-degree’ method of interrogation or in other words as a form of ‘torture’.

In support of their claims, it would be fitting to see some of the International Conventions that protect the rights of the accused, which have been discussed in the ensuing paragraphs:-

1. Article 10 of the Universal Declaration of Human Rights-

“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

14. Article 14.3(g) of the U.N Covenant on Civil and Political Rights, 1966-

“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(g.) “Not to be compelled to testify against himself or confess guilt”

• Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950

“In the determination of his civil rights and obligations, or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”

Interpretation- Although Article 6(1) does not specifically mention the right against self-incrimination, it mentions a fair procedure- which can be ensured only by recognizing the international standards against self-incrimination. Article 6(1) aims to secure the miscarriage of justice by providing the accused with protection against improper compulsion by the authorities.

1. Part 3, Article 7 of the International Covenant on Civil and Political Rights (ICCPR)-

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”

Interpretation- The use of truth serum test is considered torture under the International Law regime. The United Nation’s definition of torture states that tests performed for obtaining information from suspects amount to severe mental suffering or coercion.

Other than the explicit verbatim of International Statutes, the Human Rights Committee has prohibited the use of evidence obtained under duress, by stating- “the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment”.

The Committee further stated, “the law should require that evidence provided by…any…form of compulsion is wholly unacceptable.”

Informed Consent

Although the Narco-Analysis test lacks legal sanctity, informed consent makes it legally valid and admissible, to a certain extent. It is noteworthy that informed consent is the most important prerequisite for carrying out the test procedure.

‘Informed Consent’ elucidates that the accused should be made well aware of the technicalities of the test, the physical, psychological and legal effects of undergoing the test, and finally the short or long term effects of psychotropic drugs under whose influence the accused shall be interrogated.

The consent of the accused, to undergo the test, will cover all answers that were prompted in the semiconscious state of mind, induced by the narcotics; rendering the entire process voluntary, and in no way extorted.

In India, the National Human Rights Commission formulated certain guidelines that need to be followed before administering the test procedure, in order to uphold the legality of informed consent. Thus, the NHRC stated that:

1. The consent shall be recorded before a Judicial Magistrate.
2. During the hearing before the Magistrate, the accused shall be duly represented by a lawyer.
3. The Magistrate shall also consider all factors relating to the detention including the length of detention and the nature of the interrogation.
4. The actual recording of the test shall be done in an independent agency- like a hospital and conducted in the presence of a lawyer.
5. A full medical and factual narration of the manner of information received must be taken on record.

The Indian scenario of the Narco-analysis test involves strict adherence to these procedures, for a violation of any of them can lead to the inadmissibility of the evidence, rendering the test void. The scenario must also proceed on the presumption of constitutional invasiveness and evidentiary unpermissiveness, unless the informed consent has been obtained legally, without any coercion.

Comparison with the stance of Self-incrimination in the United States

The Fifth Amendment of the Constitution of the United States of America protects a person from being compelled to incriminate oneself, and it also extends to state and local jurisdictions. In addition to the right against self-incrimination, the provisions of the Fifth Amendment provide many important safeguards for Americans, including the right to remain silent while in police custody.

The US standpoint on the Right against self-incrimination was discussed in United States vs Hubbell. In the present case, the question regarding the point at which the protection against Self-incrimination begins to operate was raised i.e. whether the protection only begins to apply if the statements are admitted as incriminatory evidence, or whether it is operative at the pre-trial interrogation stage itself.

The Supreme Court affirmed that the Fifth Amendment was in force outside of a trial setting also.

However, in Miranda vs Arizona, the court also clearly laid down that volunteered statements are not barred by the Fifth Amendment, which enshrines the Right against Self-incrimination. Hence, it can be discerned that the position on Self-incrimination as laid down in Nandini Satpathy case and Kalawati case, is similar to the stance of the United States Supreme Court. 

It is also a noteworthy characteristic of the Fifth Amendment, which elucidates that when a defendant (or a witness) pleads the Fifth, the jurors are not permitted to take the refusal to testify into consideration when deciding the case. In Ohio vs Reiner, the U.S. Supreme Court stated that:

“…a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The [Fifth Amendment right against self-incrimination] serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”

Conclusion

The jurisprudence behind administering the Narco-Analysis test is to sustain public trust in the judiciary, and to obtain evidence in criminal proceedings, that in any other way, would be difficult to obtain. However, the courts need to strike a balance between ‘obtaining evidence’, and ‘fundamental rights of the accused’; which are thus violated if they are forced or coerced to give evidence against themselves.

The present science involving the narco-analysis test is inaccurate, and the evidence obtained out of the subject shall not be conclusive evidence per se. Moreover, Article 20(3) of the Constitution of India and Section 161(2) of the Code of Criminal Procedure (CrPC) protect the rights of the accused, and no scientific method shall be used to obtain evidence, that violate these Constitutional Rights. Administering the narco-analysis test, without informed consent, would tantamount to ‘compelled self-incrimination’.

Suggestion in favor of the Narco-analysis test – In order to strike a balance between ‘public interest’ and ‘right to remain silent’, it would be expedient to observe, that although the narco-analysis test lacks legality and veracity, it can be administered in a proceeding as a ‘last resort’ investigative technique.

The decision as to whether Narco-analysis is warranted or not should be made by the Trial court, by examining all facts and circumstances, and whether there has been an exhaustion of traditional means of investigation. However, it shall in no way, be used as a replacement of the existing methods of investigation, the principles of which have been clearly laid down in criminal procedural laws.