This article has been written by Ms. Sana Hans, a student studying LL.B Hons from Amity Law School, Noida. The author is a 3rd year law student.
Narco-analysis is a highly debated topic in the legal world and a discussion point for the public and the media. In an attempt to ascertain the truth, new scientific techniques have been incorporated and new tools of investigation have emerged. Narco-analysis is one of such scientific forms of investigation which aims to gain a statement from the accused which might form part of evidence for the case in question. A process like this has been at facing end of constant criticism and been hailed as being against the basic tenets of Constitution and on the other hand has gathered support as it is considered a necessity to evaluate some complicated cases and issues. An often asked important question is how such a test is violative of Article 20 (3) of Constitution and the rights against self- incrimination, guaranteed under it. Thus, it’s a complicated topic, often debatable as it poses questions on the multi-layered intersections between law, medicine and human rights and ethics.
During narco-analysis, the person is sent in a state of disinhibition, i.e., a state where the person is not conscious of his actions. It is done by administering a solution of sodium pentathol and distilled water into the veins by a qualified anaesthetist. The test is conducted by recreating scenarios or situations or by asking questions to the testifier and prodding him to answer. The solution works just like a truth serum as the testifier is not in a state to think consciously about what he is answering. The tests pose a lot of problems, one of them being the administration of too little narcotics. The testifier can fake scenarios and can resist the process of disinhibition, whereas if the narcotic is administered in higher amounts than required, the testifier can go into a state of unconsciousness, which could in turn even cause him to go into a coma. The testifier’s vitals are continuously monitored by a team of doctors to prevent any health issues. The whole process is video recorded and a report is given by the doctors for further consideration and to help find more evidence.
Clause (3) of Article 20 of the constitution declares that “no person accused of an offence shall be compelled to be a witness against himself”. This provision may be stated to consist of the following three components:
1. it is a right pertaining to a person accused of an offence
2. it is a protection against compulsion to be a witness; and
3. it is a protection against such compulsion resulting in his giving evidence against himself.
Looking from the moral and ethical grounds, in few cases, limited admissibility is granted to narco-analysis based on circumstantial requirements. The most essential element is Consent for the procedure. If the procedure/test is done against the will of the subject, it amounts to a violation of Article 20(3) of the Indian Constitution. Article 20(3) embodies the privilege against self-incrimination – where an accused person cannot be forced to be a witness against himself. The application of this process also encroaches upon an individual’s human rights, privacy, and freedom.
In Ram Jawaya Kupar’s case, it has been held that executive power cannot intrude on either constitutional rights and liberty, or for that matter any other rights of a person and it has also been observed that in absence of any law an intrusion in fundamental rights must be struck down as unconstitutional.
It also goes against the guaranteed Right to Silence as mentioned under Cr.P.C where a person is not bound to answer questions that have a tendency to expose them to a criminal charge, penalty, or forfeiture. This provision is embodied under Section 161(2) of the legislation. This right has its roots in the case in Nandini Sathpathy v. P.L Dani, wherein it was stated that there can be no forcible extraction of statements from the accused who has the right to remain silent during investigation. It is the duty of the prosecution to prove guilt beyond reasonable doubt by collecting evidence. The practice of this procedure not only amounts to mental harassment and torture but also violates Article 21 of the Indian Constitution by infringing one’s privacy while interrogating in a semi-conscious state.
In State of Bombay v. Kathi Kalu Oghad a Bench of the Supreme Court consisting of eleven judges held that: “It is well established that clause (3) of Article 20 is directed against self-incrimination by the accused person. Self-incrimination must mean conveying information based upon personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in the controversy, but which do not contain any statement of the accused based on his personal knowledge.”
Therefore, it is contested that narco-analysis does not amount to compulsion as it is a mere process of extracting information by the accused through disinhibition. The results are ascertained from the video recorded during the test which could help in disseminating more information on the case. However, it is still a controversial topic as the accused makes the statement himself unlike the other tests, and sometimes the statement made can be self-incriminatory. It cannot be ascertained before the Court whether the test will be self-incriminatory or not. Article 20(3) of the Constitution can be appealed if the statements made by the accused are self-incriminatory and will be rendered inadmissible in the Court even though they provide a piece of evidence or lead to dissemination of more facts or evidence.
Just like a confession made in the police station is not admissible, a statement made during the narco analysis test is not admissible in the Court, except under certain circumstances when the Court thinks that the facts and nature of the case permit it. The Courts have, however, provided differing views on the permissibility of conducting narco-analysis.
In the case of SeIvi Murugesan v. State of Karnataka,(2010), the High Court of Karnataka explored the issue of whether narco-analysis is a compulsion on the invasion of the human body or not. Justice Majage referred to Section 53 (1) of the CrPC which provides for the use of reasonable force by a medical practitioner at the request of a police officer for ascertainment of facts that could help in finding new evidence. He stated that the narco-analysis test done by a qualified medical practitioner within a prescribed manner is justified under Section 53(1) of the CrPC.
Further, supporting his view with the help of Section 39 of the Criminal Procedure Code, he stated that it is the duty of every individual to give information about a crime, and Article 20(3) of the Constitution cannot hinder the process of acquiring the truth. This view has further contended in the case of Ramchandra Ram Reddy v. State of Maharashtra, (2004) where the petitioner argued that the narco-analysis test is an invasion of the body and thus violates Article 20(3) of the Constitution. The Court shared similar views as in the case of SeIvi Murugesan v. State of Karnataka and further stated that contrary to the belief sometimes the test could be used to prove testifiers innocence.
References:
http://www.rmlnlu.ac.in/webj/sonakshi_verma.pdf
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