ARTICLE 20(3) OF THE CONSTITUTION OF INDIA AND NARCO ANALYSIS –

Gujarat National Law University COGNITIO

2008

ANIRBAN ROY CHOUDHURY +91 9766655972

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MADHUBANI CHAKRABORTY +91 9321288031

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SYMBIOSIS LAW SCHOOL SYMBIOSIS INTERNATIONAL UNIVERSITY Pune, Maharashtra

| Anirban Roy Choudhury | Madhubani Chakraborty || SYMBIOSIS LAW SCHOOL

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ARTICLE 20(3) OF THE CONSTITUTION OF INDIA AND NARCO ANALYSIS – BLENDING THE MUCH AWAITED


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ARTICLE 20(3) OF THE CONSTITUTION OF INDIA AND NARCO ANALYSIS ANALYSIS – BLENDING BLEN DING THE MUCH AWAITED. “…..throughout the web of English criminal law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt”#

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Article 20 (3) - No person accused of any offence shall be compelled to be a witness against himself. [1]

“Narco-analysis is a term invented by Horsley to describe a psychotherapeutic technique, technique, in which, by the administration (usually by intravenous injection) of a narcotic drug, the patient is put into a soporose state before being brought to discuss matters which will cause him emotional emotional distress.” [2]

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The beginning of the right against self-incrimination lies in the seventeenthcentury trial of John Lilburne[3], a Puritan agitator who when put on trial refused to take an oath requiring him to answer questions posed to him truthfully and was as a result whipped and pilloried . Subsequently, the punishment was declared illegal and the Star Chamber [4] was abolished. It didn’t help Lilburne much of course, but it set a precedent the right against self-incrimination was, in a manner


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of speaking, born. Since then, this principle of nemo tenetur accusare se ipsum [5] has been handed handed down in legislative legislative and constitutional constitutional history history as a forbearer of procedural fairness. # --per Viscount Sankey Woolmington Woolmington vs. DPP , 1935 AC 462 at 481

1 – The Constitution of India, Part III- fundamental rights (right to freedom) Article 20 - Protection in respect of conviction for offences 2 – Butterworth’s medical dictionary 2nd edition

3 – John Lilburn - (1614–29 (1614–29 August 1657 1657), ), also known as Freeborn John, was an agitator in England before, during and after the English Civil Wars of 1642–1650. In his early life he was a Puritan Puritan,. ,. His works have been cited in opinions by the United States Supreme Court. Court . 4 – Star Chamber – see page 6 5 – No man can be compelled to criminate himself No one is bound to criminate himself. Hence although an accused person may of his own accord make a voluntary statement as to the charge against himself, a justice, before receiving such statement from him is required to caution him that he is not obliged to say anything and that what he does say may be given in evidence against himself. himself. hence also arises the rule that evidence of a confession by the accused is not admissible unless it is proved that such confession was free and voluntary.[The Law Lexicon, 2 nd edition 2006, justice Y.V.Chandrachud, pg- 1298]

The privilege does not extend to administrative proceedings. Initially, the law did not extend this umbrella over civil proceedings either; lately the courts have been experiencing a few qualms in this regard. And that for a research into the contours of administrative law is evidently problematic. A diatribe, it would seem, is in order. However, However, before that it would perhaps be best to appreciate the scope of the right against self-incrimination. Scope of the Right against self-incrimination: Quite simply, the right against selfincrimination is evocable when four conditions are satisfied, namely namel y, o The person questioned is an accused o

The testimony obtained from such person is compelled

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Such person is in the position of a witness, and

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Such testimony obtained from the accused in his position as a witness is

against him. Hence, within the Indian law, the immunity is only specific, that is, available only to persons suspected of criminal offences. The privilege in criminal law is based on and determined by section 161(2) of the Code of Criminal Procedure [6], section 27 of Indian Evidence Act [7] and Article 20 (3) of the Constitution of India The most pertinent case in this regard is


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undoubtedly Nandini Satpathy v. P.L.Dani [8], wherein Krishna Iyer, J. widened the scope of the protection protect ion considerably. considerably. The issues before the court were various: such as whether a potential candidate for accusation can avail of the privilege, does the privilege extend to other pending or potential accusations outside the specific investigation which has led to the questioning, at what instance in the entire proceeding proceeding does the privilege privilege become available, available, the scope of compulsion compulsion,, and whether the privilege extends to derivative evidence.

6 -- Code of Criminal Procedure, Procedure, 1973 Article 161(2) – 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 7 – Indian Evidence Act, 1872 How much of information received from accused may be proved Provided that, when any fact is deposed to as discovered in consequence of information Received from a person accused of any offence, in the custody of a police officer, so Much of such information whether it amounts to confession or not, as relates distinctly to The fact thereby discovered, may be proved 8 -- Nandini Satpathy v. P.L.Dani – AIR1978SC1025, 1978crilj968, (1978)2SCC424, [1978]3SCR608 Civil Appeal No. 315 Of 1978 And Criminal Appeal No. 101 Of 1978 Decided On: 07.04.1978 Nandini Satpathy - Former Chief Minister Of Orissa - Against Whom A Case Had Been Registered Under The Prevention Of Corruption Act, Was Asked To Appear Before The Deputy Superintendent Of Police [Vigilance] For Questioning. The Police Wanted To Interrogate Her By Giving Her A String Of Questions In Writing. She Refused To Answer The Questionnaire, On The Grounds That It Was A Violation Of Her Fundam Fundamental ental Right Against Self-Incrimination.

It was subsequently held that, the right extends to witness and accused alike, that the expres expressio sion n 'accus 'accused ed of any offenc offence’[9 e’[9], ], must must mean mean formal formally ly accused accused in praesenti not in futuro, that it applies at every stage at which furnishing of information and collection of materials takes place, that the privilege extends not only to the deployment of the information obtained as evidence in a criminal prosecution, but to the extraction of the information itself , that the true test for


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test testin ing g vali valid d invo invoca cati tion on of the the righ rightt is reas reason onab able le appr appreh ehen ensi sion on of the the accused/witness as to the use of the information against him/herself, and finally, that compelled testimony includes evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like, but not legal penalty for violation. The ‘right to silence’ is a principle of common law [10] and it means that normall normally y courts courts or tribun tribunals als of fact should should not be invite invited d or encour encourage aged d to conclude, conclude, by parties or prosecutors, prosecutors, that a suspect suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.

9 – “Accused of an offence” where evidence oral or circumstantial points to the guilt of a person and he is taken in custody and interrogated on that basis, he becomes a person accused of an offence AIR 1958 All 293, 302 [Constitution of India, Article 20(3)] “Accused of any offence” the description accused of any offence is description of the person against whom evidence relating to information alleged to be given by him is made probable under section 27. It does not predicate a formal accusation against him at the time of making the statement sought to be proved as a condition of its acceptability State of UP v. Deoman, Deoman, AIR 1960, SC 1125, 1132 In Re Upputholla Srinivasulu, AIR 1958 Andhra Pradesh, 37, 41 [Indian Evidence Act, 1872, section 87] Accused person – see Jhola Singh, Singh, 23 C, 493; 16B 661 9 CWN 983 = 2 CLJ 149 ; 6 CWN 163 ; 2 LBR 80 Queen Empress v. Mutsaddi Lal, 21 A 107 Sheoddin v. King Emperor, 6 OC 262 Abraham Verghese v. State of Kerala, AIR 1965 Kerala 175, 176 [Indian Evidence Act, 1872, section 24]

[The Law Lexicon, 2 nd edition 2006, justice Y.V.Chandrachud, pg31] 10 – Chancellor Kent defined the common law as “those principles usages and rules of action applicable applicable to the government government and security of persons and property which do not rest for their authority upon any express and positive declarations of will of the legislature” [ 1 Kent Comm. 469 ]

[The Law Lexicon, 2 nd edition 2006, justice Y.V.Chandrachud, pg362]

The origins of right to silence may not be exactly clear but the right goes back to


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the Middle Ages in England. During the 16 th century, the English Courts of Star Chamber [11] and High Commission [12] developed the practice of compelling suspects to take an oath known as the “ex-officio oath” and, the accused had to answ answer er ques questio tions ns,, with withou outt even even a forma formall char charge ge,, put put by the the judg judgee and and the the prosecutor. If a person refused to take oath, he could be tortured. These Star Chambers and Commissions were later abolished. The right to silence is based on the the prin princi cipl plee ‘nem ‘nemo o debe debett prod prodere ere ipsu ipsum’ m’ [13] [13],, the the priv privile ilege ge again against st selfselfincrimination The The term term Narc Narcoo-An Analy alysi siss is deriv derived ed from from the the Greek Greek word word nark narkçç (mean (meanin ing g "an "anaes aesthes thesia ia"" or "to "torpo rpor") r") and and is used sed to descr escrib ibee a diag iagnosti osticc and and psy psych chot othe hera rape peut utic ic techn techniq ique ue that that uses uses psyc psycho hotr trop opic ic drug drugs, s, parti particu cula larly rly barbi barbitur turates ates,, to induce induce a stupor stupor [14] [14] in which which mental mental element elementss with with strong strong asso associa ciate ted d affec affects ts come come to the the surf surface ace,, wher wheree they they can be expl exploi oite ted d by the the therapist. therapist. The term Narco-analysis Narco-analysis was coined by Horseley Horseley.. Narco analysis first reached the mainstream in 1922, when Robert House, a Texas obstetrician used the drug scopolamine [15] on two prisoners. The search for effective aids to interrogation is probably as old as man's need to obtai obtain n info inform rmati ation on from from an unco uncoop oper erati ative ve sour source ce and and as pers persis isten tentt as his his impatience to shortcut any tortuous path. In the annals of police investigation, phy physi sical cal coer coercio cion n has has at times times been been subs substit titut uted ed for for pain painst stak akin ing g and and time time consum consuming ing inquiry inquiry in the belief belief that that direct direct method methodss produc producee quick quick result results. s. Development of new tools of investigation has led to the emergence of scientific tools of interrogation like the Narco analysis test.

11 – Star Chamber, a Chamber at the Westminster so called because at first the ceiling there was adorned with images of gilded stars. And in the Stat. 25 Hen. 8 C, 1 it is written “The Starred Chamber” [Tomlins Law Dictionary] a civil and criminal court noted for arbitrary procedure. procedure. 12 – Member of the British Commonwealth country 13 -- No man can be compelled to criminate himself No one is bound to criminate himself. Hence although an accused person may of his own accord make a voluntary statement as to the charge against himself, a justice, before receiving such statement from him is required to caution him that he is not obliged to say anything and that what he does say may be gi ven in evidence against himself 14 – Stupor means a different thing from excitement. It signifies a suspension or great diminution of sensibility; a state in which all the faculties are deadened or dazed

15 -- Sodium Sodium pentoth pentothal al is an ultra ultra shortshort-act acting ing barbit barbitura urate te,, which which | Anirban Roy Choudhury | Madhubani Chakraborty || SYMBIOSIS LAW SCHOOL

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seda sedate tes s only only for for a few few minu minute tes. s. It slow slows s down down the the hear heartt rate rate,, lowers blood pressure, and inhibits brain and spinal cord activity. Sodium Sodium amytal amytal and Scopol Scopolami amine ne are are other other drugs drugs used. used. Some Some benzodiazepines have been used as truth agents; most notably, the Soviet Union used temazepam for this purpose

Such tests are a result of advances in science but they often raise doubts regarding basic human rights and also about their reliability. Legal questions are raised about their validity with some upholding its validity in the light of legal principles and others rejecting it as a blatant violation of constitutional provisions Finally the Nithari Killings [16] case seems to have been solved and the guilty brought to book – “thanks to the truth serum,” many of us are likely to add. Truth Serum is used to extract extrac t the truth but what is thus ‘extracted’ may not, necessarily, be the truth. The first question, therefore, is not if narco-analysis can unearth the truth but whether it is legally permissible or not. And truth serum is clearly not constitutionally ‘clean’, so to speak, because it works by crippling the volition of the accused and loosening his wits up. This, in other words, means taking away one’s one’s control over one’s mind, and making him talk more uninhibitedly. However, However, the judicial opinion has a different take on it. In Dinesh Dalmia v. State (2006) the Madras High Court [17] ruled that narco-analysis testimony was not ‘testimony by compulsion’ because the accused “may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary.” Now, the most most cru crucial cial term termss to be anal analy yzed zed are are here ere are are ‘com ‘compu puls lsio ion’ n’[1 [18 8] and and ‘voluntary’[19]. Here they are treated as mutually exclusive in the sense that if the testimony is by ‘compulsion’ it cannot be ‘voluntary’ while it is very much possible to ‘compel’ one to testify ‘voluntarily’. And that would certainly be a testimony by compulsion despite the element of volition inherent in i t. One can be beaten, tortured or threatened into testifying or confessing in the court. Would Would that testim testimony ony or confes confessio sion n be volunt voluntary ary?? If this this is not voluntary voluntary,, how could a testimony under the influence of drugs, when even one’s volition is suspended, be ‘voluntary’ by any stretch of imagination? The decision of the High Court clearly states that the person in question is taken to the laboratory “against his will”, and this is where the compulsion starts. In the laboratory he is injected with drugs that make him slip into a trance like condition with his inhibitions down and then the questions are asked, and he answers because he no longer has a ny control over his brain. And he starts talking about everything that is on his mind – right and wrong, true and imaginary.


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16 – Nithari killing, noida Nithari village (Noida) serial killings. The two main accused in the Nithari serial killings Mohinder Singh Pandher and Surendra Kohli have undergone Narco analysis tests in Gandhinagar in Gujarat 17 -- Dinesh Dalmia v. State (2006) the Madras High Court 18 – Compulsion, constraint, forcibly inducement to the commission of an act T.P T.P.Act Section 73(2) ; Registration Act Section 17 19 – Voluntary Voluntary,, of one’s free will ; not constrained by another ; acting voluntarily or willingly Sale of Goods Act Section 2(2) Prov. Const Article 101(3)

Now, the supporters of narco-analysis might argue that the so-called ‘consent form’ sign by the accused supplies the requirements of ‘voluntary disclosure’ [20]. That’s a fallacy, as in case of a court-mandated narco-analysis, the ‘consent form’ has absolutely no relevance because the compliance of a judicial order passed by a competent court is not subject to anybody’s ‘consent’ [21]. The term ‘order’ [22] implies authority to compel obedience. So, if a competent court orders narco-analysis, consent or no consent, the order has to be complied with, unless it is challenged and stayed or reversed by a superior court. The accused has no choice against a valid court order, and has to testify. So, there is ‘compulsion’ [23] and there is ‘testimony’ [24] and it surely is ‘testimony by compulsion’ [25]. However, compulsion per se [26] is not illegal. Therefore, the only question is whether or not the compulsion in this case is legally sound.

20 – The expression voluntary is used to mean naturalisation naturalisation in the narrow sense of that term and excluding compulsory involuntary or collective naturalisation which some states have adopted at different times. T.E .Mahomed Usman v. State of Madras, AIR 1961 Mad 129, 138, [Citizenship Act, 1955, Section 9(1)] 21 – Consent, two or more persons are said to consent when they agree upon the same thing in the same sense Act IX, 1872, Section 13 Where consent is given substantially, substantially, the court does not very minutely look into the form in which it is given [per. Sterling, J. Re Smith, 59 LJ Ch 284] Swinfen v. Swinfen, (1857), 24 Beav. 559 Walchan Walchandrag dragar ar Industries Industries Ltd v. Ratancha Ratanchand nd Khimchan Khimchand d Motishaw Motishaw,, AIR 1953, 1953, Bom, 285, 286 Food Corporation of India v. S. K. Samanta AIR 1979, Cal, 193,194, [Arbitration Act (10 of 1940) Section 8(1)(a)] [Also see free consent – 37-8 V, c 77, Section 14, Act 45 of 1860, Section 90]


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22 – Order, defined 7-8 V.c 12, Section 20, Act 14, 1882, Section 2, Act II, 1886, Section 3(6) An authoritative direction, injunction, injunction, mandate; a decision of a court or judge made [Section 2(14), CPC and Article 13(3)(a), Constitution of India] 23 – compulsion- constraint, forcibly inducement to the commission of an act; the act of compelling or the state of being compelled. 24 – Testimony, The word testimony in its ordinary sense means the statement made by a witness under oath. The statement made by a witness under oath, personal or documentary evidence or attestation in support of a fact or statement; hence any form of evidence or proof [Indian Evidence Act, 1872, Section 157] The word testimony in its restricted legal sense means a statement made under oath in a legal proceeding, and does not embrace a document or a private writing 25 -- ‘Testi ‘Testimon mony y by compuls compulsion’ ion’,, a forcibly forcibly induced statement statement under oath in a legal legal proceeding 26 -- per se, by himself, or itself, inherently inherently,, in itself

Bomb Bombay ay High High Cour Courtt held held in the the Abdu Abdull Karim Karim Telgi elgi [27] [27] case case that that “cert “certain ain phys physical ical tests tests involv involving ing minima minimall bodily bodily harm” harm” like narconarco-anal analys ysis is and brain brain mapp mappin ing g [28] [28] did did not not viol violat atee Artic Article le 20 (3) (3) and and did did not not comp comprom romis isee the the constitutional protection against self-incrimination. The saving grace is that the confes confessio sion n or the stateme statement nt made made during during narco-a narco-analy nalysi siss is not admiss admissibl iblee as evidence in a court of law, and that is the reason why the protection against selfincrimination incrimination under Article Article 20 (3) is not breached. The disclosure disclosure leading to the recovery of incriminating material, like a murder weapon or forged documents, is admissible. In the above-mentioned case Bombay High Court seems to have held that narco-analysis is permissible because it involves “minimal bodily harm”, which implies that all such methods of extracting information that inflict minimal bodily harm are legally permissible The The expr expres essi sion on ‘min ‘minim imal al body body harm’ harm’ in this this cont contex extt can be taken taken to mean mean ‘causing ‘causing no grievous grievous hurt or long term disability’. disability’. Minor physical physical discomfort discomfort or strain is by implication implication disregarded. disregarded. Simply keeping keeping one awake for days on end and pouring water every time one tries to sleep would certainly do ‘minimum bodily harm’ and of course would cause no grievous hurt of long term disability of any kind, but isn’t it torture? Giving a narrow reading to Article 20 (3) and connecting it to bodily harm might not offend the letter of Article 20 (3) but it definitely does violates with the spirit of it because protection against torture is one of the foremo foremost st objecti objectives ves of the consti constitut tution ional al protect protection ion agains againstt selfselfincrimination incrimination.. The judgment judgment also seems to run counter to the accepted principle that the constitutio constitutional nal provisions provisions pertaining pertaining to Fundamental Fundamental Rights in Part III of


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the the Cons Constit titut utio ion n have have to be cons constr true ued d libera liberally lly so as to affo afford rd maxi maximu mum m protection.

27 -- Abdul Karim Telgi, HC stays order on narco-analysis test on Telgi,

Bangalore: Karnataka High Court today (Mar 3, 2004) stayed for two months an order of the Special Court allowing narco-analysis and lie-detector tests on prime accus accused ed in the multi multi-cr -crore ore fake fake stamp stamp pape paperr scam, scam, Abdu Abdull Karim Karim Telgi, elgi, to be conducted by the state investigation agency, STAMPIT. Judge Justice A C Kabbin passed the order on a petition filed by Telgi, praying for setting aside the special court's order last week allowing tests on him today. The petitioner had contended that such tests --narco-analysis, polygraph and brain finger printing -- are not only unknown to law but also not acceptable to it. The petitioner had also argued that he is a chronic diabetic, suffering from blood pressure and has a heart ailment, and the tests could be highly risky. STAMPIT has sought to conduct the tests on him to verify the reported statement made by him that he is ready to reveal the names of "big sharks" in the scam. 28 -- Brain mapping, P300 Test : When the brain recognises a person or a sound, it generates a particular type of electric wave, which is called a P300. Sensors are attached to the head of a person undergoing a P300 test and the subject is seated before a computer monitor. He is then shown certain images or made to hear certain sounds. The sensors monitor electrical activity in the brain and r egister P300 waves, which are generated only if the subject has some connection with the stimulus, in this case pictures or sounds

It is an accepted legal position that the protection under Article 20 (3) does not extend to compulsory production of materials or compulsion to give specimen signatures, finger impressions or blood samples. Narco-analysis, however, is still different and clearly distinguishable from giving specimen signatures or blood sample or even taking a polygraph test because except in case of a narco-analysis, the accused retains his control over what he is doing or saying and at no point of time can he be compelled to disclose any such information that he wants to keep to himself. Giving blood samples and specimen signature in such case is much like allowing the investigation investigation officer to search the residence of the accused and go through his belongings in search of evidence. That’s very much permissible. The legal and constitutional infirmity of narco-analysis lies in the fact that it takes away one’s control on one’s mind, which brings it in the category of mental torture. And tortures of all kind fall foul with Article 21,[29] under which right


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against torture is implied. Therefore, narco-analysis not only stands weak against the challenge of Article 20 (3) but also finds itself in a tight spot with respect to Article 21. Another well settled constitutional principle is that India has to conduct itself in accordance with the international treaties and conventions it is party to. Of course, principles of International Law do not come into effect automatically, they have to be backed by a legislative enactment to be effective, and if they tend to be against the law of the land, the municipal law gets precedence over them. However, in case case of tort tortur ure, e, not not only only seve several ral stat statut utes es,, inclu includi ding ng the the Code Code for for Crim Crimin inal al Procedure, provide for safeguards against it but also the Constitution, through Article 20 (3), seeks to provide effective protection in this respect. On the other hand, there is no express statutory support for measures like compulsory narcoanalysis. analysis. While narco-analysis narco-analysis is quite clearly low on the scales of human right, the government cannot even plead the existence of domestic law specifically authorizing such means against a plethora of international conventions that frown at the the use use ques questi tion onab able le mean meanss of extr extract actin ing g info inform rmati ation on durin during g a crimi crimina nall inve invest stig igat atio ion. n. Ther Theref efor ore, e, by givi giving ng too too narr narrow ow a read readin ing g to lega legall and and consti constitut tution ional al protect protection ionss in this this regard regard we might might also also be disreg disregardi arding ng our obligations under the International Law, which, under our Constitution, must be discharged unless a specific domestic legislation is irreconcilably opposed to it. Besides, it is not just the legality and constitutionality of narco-analysis that is questionable but also its efficacy efficac y and its status as a ’science’.

29 – Article 21, Constitution of India. Protection of life and personal liberty.- No person shall shall be deprived deprived of his life or persona personall liberty liberty except according according to procedu procedure re established by law.

However, However, the final judicial pronounceme pronouncement nt on the constitutional constitutional status of narcoanalysis analysis is yet to come, but it seems in the offing, as in 2006 the Supreme Court of India stayed the order of a metropolitan metropolitan judge to conduct narcoanalysis narcoanalysis on K. Venkateswara Rao [30] in the Krushi Cooperative Urban Bank case. The issue required to be settled by a court decision because Mr. Rao refused to sign the consent form and the Forensic Science Laboratory at Gandhinagar declined to conduct a narco-analysis test with a duly filled and signed consent form. The


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Supreme Court verdict is awaited 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, 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. 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.

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30 -- K. Venkateswara Rao Crime Investigation Department (CID) officials on Monday filed a petition in the Metropolitan Sessions Judge's Court at Nampally seeking fresh direction for conducting narco analysis test on K Venkateswara Venkateswara Rao, the prime accused in Krushi Bank case who has refused to undergo the test.

Some Notable Events & Cases of Narco Analysis in India -


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In a 2006 judgment (Dinesh Dalmia v State), the Madras High Court held that subje subjecti cting ng an accus accused ed to narco narco analy analysis sis is not not tantam tantamou ount nt to testim testimony ony by comp compul ulsi sion on.. The The cour courtt said said abou aboutt the the accu accuse sed: d: "he "he may may be take taken n to the the laboratory for such tests against his will, but the revelation during such tests is quite voluntary." 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 violat violate e the funda fundamen mental tal right right again against st self-i self-incr ncrimi imina natio tion. n. Articl Article e 20(3) 20(3) of the Const Constitu itutio tion n guara guarante ntees es this: this: "No perso person n accus accused ed of any any offen offence ce shall shall be compelle compelled d to be a witness witness against against himself." himself." Stateme Statements nts made made under under narco narco analysis are not admissible in evidence. In January 24th, 2008, a bench of Chief Justice K.G. Balakrishnan reserved its ruling ruling after after hearing hearing arguments arguments for three three days from various various parties, parties, including including Solicitor Solicitor General General Goolam Goolam E. Vahanvati ahanvati and senior senior advocat advocate e Dushyant Dushyant Dave, 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 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. The The Bomb Bombay ay High High Cour Courtt rece recent ntly ly in a sign signif ific ican antt verd verdic ictt in the the case case of, 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" "statement" being made made and the statemen statementt made made under under narco narco analysis analysis was not admissible admissible in evidence during trial. The judgment also held that these tests involve "minimal bodily harm". 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.

A Brief Outline of The Narco Analysis Test-

Gujarat National Law University COGNITIO •

2008

The narco analysis test is conducted by mixing 3 grams of Sodium Pentothal or Sodium Amytal dissolved in 3000 ml of distilled water. Narco Test refers to the practice of administering barbiturates or certain other chemical substances, most often Pentothal Sodium, to lower a subject's inhibitions, in the hope that the subject will more freely share information and feelings. A person is able to lie by using his imagination. In the Narco Analysis Test, the subject's inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like state efforts are made to obtain "probative truth" about the crime. Experts inject a subje subject ct with with hypno hypnotic tics s like like Sodiu Sodium m Pento Pentotha thall or Sodiu Sodium m Amyta Amytall under under the contr controll olled ed circum circumsta stance nces s of the labo laborat ratory ory.. The dose dose is depe depend nden entt on the person's sex, age, health and physical condition. The subject which is put in a state of Hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions. suggestions. The subject is not in a position to speak up on his own but can answer specific but simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers.[18] Wrong dose can send the subject into coma or even result in death. The rate of administration is controlled to drive the accused slowly into a hypnotic trance. The effect of the bio-molecules bio-molecules on the bioactivity of an individual is evident as the drug depresses the central nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated by the investigating agencies in the presence of the doctors. The revelations made during this stage are recorded both in video and audio cassettes. The report report prepa prepared red by the the expert experts s is what what is used used in the the proces process s of collec collectin ting g evidence. This procedure is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required

Supreme Court reserves ruling on narco analysis Friday, Jan 25, 2008, [The Hindu] •

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A three-Judge Bench, comprising Chief Justice K.G. Balakrishnan and Justices R.V. R.V. Raveend Raveendran ran and J.M. Panchal, Panchal, reserved judgment judgment at the conclusi conclusion on of argumen arguments ts by counsel for the petitioners, petitioners, the Centre, Centre, the Central Central Bureau Bureau of Investigation and the amicus curiae, assisting the court. The petitioners argued that courts could not direct the prosecution to hold narco analysis, analysis, brain mapping mapping and lie detecto detectorr tests on the accused against against their their willingness as it would be violative of Article 20 (3) of the Constitution (no person accused of any offence shall be compelled to be a witness against himself). He said, “While on the one hand, constitutional embargo is omni-present, the existing existing statutes, statutes, including including the Cr.P Cr.P.C. .C. and the Indian Indian Evidence Evidence Act, do not expressly authorise collection of evidence through process, during which the accused may be compelled to be a witness against himself. Clearly there is no backing in law for the police to collect such evidence through these tests nor has there been any power in the courts to authorise the police to do so.” Mr. Dave said, “Such tests can only be done by legislation, which may authorise the the same same as unde underr TADA. ADA. To allo allow w adop adopti tion on of any any of the the thre three e test tests s in


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investigations investigations involving day to day crimes would negate the very values for which the society stands and the Constitution affirms.” Earlier senior counsel T.R. Andhyarujina, appearing for the CBI, submitted that none of the three tests “are unconstitutional or illegal. They are modern and scientifi scientific c techniqu techniques, es, which are authorise authorised d by law and are necessary necessary to be carried out in the investigation of an offence of such a nature and under such circumstances where there are reasonable grounds for believing that such tests will provide evidence as to the commission of an offence.” He said: “Results obtained from examination of the accused would not offend the prohibition against against testimonial compulsion under Article 20 (3) of the Constitution. “Further, these tests, including narco analysis, are valuable for not only punishing the guilty but exonerating an accused person. They avoid the temptation to sue third degree methods like torture to obtain information. Such tests cannot be construed as invasion of privacy of the accused.” To be noted: Section 45 of the Indian Evidence Act, 1872 gives evidentiary value to an Expert opinion. Blacks Law Dictionary defines Expert Evidence as evidence about a scientific, technical or professional issue given by a person qualified to testify the cause familiarity with the subject or special training in the field. US courts in most jurisdictions doubt the reliability of lie detector tests and refuse to admit the results. In the case of Townsend v. Sain, Sain, it was held that the petitioners confession was constitutionally inadmissible if it was adduced by the police questioning, during a period when the petitioners will was overborne by a drug having the property of a truth serum. In another famous case of US v. Solomon, Solomon, which directly debated the issue of narcoanalysis, the expert opinion given to the court established that truth serum is now generally accepted investigative technique. The experts said: Adequate safeguarding against unreliability is possible. However narcoanalysis does not reliably induce truthful statements. In Indi India, a, the the deci decisi sion on to cond conduc uctt narc narcoa oana nalys lysis is is usua usuall lly y made made by the the Superintendent Superintendent of Police or the Deputy Inspector-General Inspector-General handling a case. W hile the expert studies and court opinions available internationally have granted that there may be some use in narcoanalysis, the overwhelming evidence is that narcoanalysis narcoanalysis is by no means a reliable science. There are some significant legal aspects to the narcoanalysis debate, which are becoming clearer with the conducting of such tests in the country. The same is discussed in the article with the help of case laws. 1. In a 2006 judgment (Dinesh Dalmia v. State), State), the Madras High Court held that subjecting an accused to narcoanalysis does not violate any constitutional rights of the person, as revelation by accused when these tests are conducted is voluntary. However, the criticism is that this judgment turns on a technicality. The admission by accused after he is injected with such drugs is always technically voluntary. voluntary. 2. In 2004, 2004, the Bombay Bombay High Court ruled ruled in the multi-crore multi-crore fake stamp stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination as guaranteed by Article •

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20(3) 20(3) of the Const Constitu itutio tion. n. Statem Statemen ents ts made made unde underr narco narcoan analy alysis sis are not not admis admissib sible le in evide evidence nce.. Howeve Howeverr, recov recoveri eries es result resulting ing from from such such drugge drugged d interviews are admissible as corroborative evidence. In this case, Abdul Abdul Karim Telgi, Telgi, underwent narcoanalysis in Bangalore in order to aid investigation and facilitate the collection of evidence. The Karnataka Forensic Science Science Laborato Laboratory ry (KFSL) (KFSL) in Bangalo Bangalore re conduct conducted ed a polygrap polygraph h test, test, brain brain mapping, and a narcoanalysis procedure. The Narcoanalysis test submitted an immen immense se amoun amountt of infor informa matio tion n but but doub doubts ts were were raised raised abou aboutt its value value as evidence. One view was that the test should be looked at as an aid in collection of evidence or as corroboratory piece of evidence and since it was always done after a grant from the court and a signed consent of the subject, it did not amount to testimonial compulsion. 3. The The Bomba Bombay y High High Court Court recen recently tly in a signi signific ficant ant verdict verdict in the the case case of, Ramchandra Reddy and Ors. v. State of Maharashtra , upheld the legality of the use of P300 or brain finger-printing, lie-det lie-detector ector test and the use of truth serum or narcoanalysis. It also upheld the admissibility of evidence procured under the effect of truth serum. The judgment also held that these tests involve minimal bodily harm. Surender Koli, main accused in the Nithari case, was brought to forensic science laboratory in Gandhinagar in January 2007 for Narcoanalysis. Polygraphic test was conducted conducted on Moninde Moninderr Singh Singh Pandhe Pandherr and his servant servant Surendra Surendra Koli, accused accused of serial serial killings killings of women women and children children in Nithari, Nithari, to ascertain ascertain the veracity of their statements made during their custodial interrogation. Various confessional statements were made by he accused under the effect of the drug, he could remember the names of the females he had murdered and revealed that his urge to rape them after murdering them. The Supreme Court at the earliest opportunity should clarify the extent to which evidence gathered gathered in such a manner may be made admissible or if it should only be used as means of collecting evidence.

An alternative to narco-analysis narco-analysis test As the country debates on the validity of narco-analysis narco-analysis and brain mapping tests, forensic experts now claimed that a new technology Brain Electrical Oscillation Signature (BEOS) is more ‘efficient and non-invasive’ than the current scientific methods followed in the investigation of criminal cases. “BEOS can read the reactions of brain even if the suspect remains silent. It can •

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pin-point the actual person present in the crime scene among many suspects which which both both narco narco-an -analy alysis sis and and brain brain mapp mapping ing canno cannott do,” do,” Mukun Mukunda dan n C R, consultant to the Directorate of Forensic Sciences said. Mukundan, who is the brain behind the new technology, said BEOS has already been appreciated by the British Psychological Society and the Society wants to have a ‘collaboration with us and have asked us to set up a lab there to carry out more more resea research rch.’ .’ He said said narco narco-an -analy alysis sis test test and and brain brain mapp mapping ing has has been been discarded by almost all investigating agencies in different parts of the world as they do not give ‘concrete results’.


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“In narco-analysis test, the respondent blows out of 5% sense and 95% nonsense. Under the influence of drugs, he speaks out even what he has not done but had wished to do. It is like hearing a person who has had two to three pegs of whisky,” he said. Giving reasons for disowning brain mapping, he said, “It does not give concrete results. There is no specificity and is like diagnosing a disease by just taking notes of the body temperature. Body temperature does indicate something is wrong but you cannot diagnose the actual disease,” Mukundan said. He explained that both brain mapping and BEOS record time-locked electrical activity from the surface of the brain when the suspect is presented with specially formu formulat lated ed audit auditory ory probe probes s refer referrin ring g to variou various s aspect aspects s of the crime crime bein being g investigated. While in the case of brain mapping, the suspect has to say something but under BEOS, he can remain silent. “This is the biggest advantage advantage of BEOS. The suspect is not forced to answer, his choice of remaining silent and not being subjected to reply out of force or fear is restored. The brain will react to probes put ahead of him,” Mukundan said

References •

Constitutional Validity Validity of Scientific Tests for “Lie- Detection”

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The Constitution of India

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Code of Criminal Procedure, 1973

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Indian Evidence Act, 1872

Gujarat National Law University COGNITIO •

2008

The Fundamental Fundam ental Right Ri ght to Privacy: Priva cy: A Case by Case Develop D evelopment ment sans Stare Decisis -- Sandeep Challa

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Narco Narc o analysis -- S.Malini S.Malin i & B.M.Mohan, B.M.Moha n, Forensic Science Laboratory, Labora tory, Bangalore

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Narco Narco analys analysis, is, tortur torturee and democr democratic atic rights rights -- Twenty wenty secon second d Dr. Dr. Ramanadham Memorial Meeting

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Law Commis Commissio sion n of India, India, One Hundre Hundred d Eightie Eightieth th Report Reportss on Article Article 20(3) Of The Constitution Of India And The Right To Silence May 2002 (Justice M. Jagannadha Rao)

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Narco analysis leads to more questions than answers -- Jagadeesh N Is Narco analysis analys is on accused legally legall y tenable? 14 Jan 2004 the Times Times of India

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What is Narco-analysis test? 8 Feb 2004 The The Times Times of India Narco Analysis : Legality and Application -- Major General Nile ndra Kumar, AVSM, VSM Need for Narco analysis test -- M Shamsur

Rabb Khan, the Daily Star •

Law of Evidence Evide nce -- Sir John Jo hn Woodroffe Woodroffe and a nd Syed Amir Ali, 17 th Edition.(2001), Butterworth’s Publication.

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Fields Commentary, Law of Evidence, 12th Edition.(2006), Delhi Law House.

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Chaudhry,R.N., Chaudhry,R.N., Expert Evidence (Medical & Non medical ) ), 2nd Edition.(2004), Orient Publishing Company. Company.

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Ratalal & Dheerajlal, The Law of Evidence , 22nd Edition.(2006), Wadhwa Nagpur.

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Narcoanalysis and some hard facts , Sriram Lakshman

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Lie tests open to judicial review revie w by Rakesh Bhatnagar Bhatnag ar

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Forensic Forensi c Lie Detection Detec tion Procedures Procedure s Without Scientific Scientif ic Basis by William G. Iacono,

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Narcoanal Narc oanalysis ysis and Criminal Crimina l Law by John M.MacDonald, M.Mac Donald, M.D., Denver,

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DNA : Daily News & Analysis

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The Hindu

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The Sunday Statesman


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Jesani Jesani A. Medical professionals professionals and interrogation interrogation:: lies about finding finding the truth. Indian J Med Ethics 2006 Oct-Dec; 3: 116-117.

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MCI. MCI. Indi Indian an Medi Medical cal Coun Council cil (Pro (Profe fess ssio iona nall Cond Conduc uct, t, Etiq Etique uett ttee and and Ethics Ethics)) Regula Regulatio tions, ns, 2002. 2002. Gazette Gazette of India India dated dated 06.04. 06.04.02 02,, part part III, section 4

ARTICLE 20(3) OF THE CONSTITUTION OF INDIA AND NARCO ANALYSIS –

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