Often endorsed as an antidote to “third–degree methods”, the narcoanalysis test is being increasingly used by the police in India to gather evidence in cases. Narcoanalysis or the ‘truth serum’ test is a process by which a person is injected with barbiturates in order to induce a state of hypnosis and release repressed feelings, thoughts or memories. This semi-conscious state is said to facilitate interrogation. Narcoanalysis is performed in a hospital under the supervision of a psychoanalyst and anesthetist. The interrogation function of the police is delegated to the psychoanalyst who is provided with a detailed questionnaire. These tests have been performed on suspects in a number of cases since 2000.  

The narcoanalysis test has been criticised for its unreliability. Scientific studies demonstrate that the test is not foolproof and even induces confessions from innocent persons, as the subject is in a highly suggestible state and prone to give false or misleading answers to questions that may be improperly framed. Research suggests that these tests are ineffective on individuals who are determined to lie, as they are usually still able to lie even when drugged. 

It is also feared that memories may be “planted” in the subject’s brain during questioning; a person may come to believe that he has actually committed the crime, even though in reality he is entirely innocent. Research shows that there is a very high risk of “a gross miscarriage of justice through undue dependence upon unreliable statements.”  

Unfortunately, the courts have not given due regard to these factors and have instead held that because the test is “scientific” and conducted in the presence of an “expert”, it is permissible. In their zeal to promote the use of scientific tests to further investigation, the judges have failed to appreciate the invasive and self-incriminatory nature of the test.  

Impact on the right against self-incrimination 

Article 20(3) of the Indian Constitution states that “(n)o person accused of an offence shall be compelled to be a witness against himself”. It operates as a protection against testimonial compulsion. Section 161(2) of the Indian Criminal Procedure Code (CrPC) provides a similar protection to the accused. It provides that a person is bound to truly answer all questions while being examined by the police except those that “would have a tendency to expose him to a criminal charge or penalty…”. The protection against self-incrimination is available to both – accused persons and suspects who have not been charged with the commission of an offence. 

‘To be a witness’ has been interpreted by the Indian Supreme Court to mean “imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.” (State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808). Further, “giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification” would not amount to self-incrimination (AIR 1961 SC 1808). The rationale informing this was that the framers of the Constitution could not have intended to burden the criminal justice system with obstacles to investigation.  

Informed consent is intrinsically linked to the exercise of the right against self-incrimination. In Ramchandra Ram Reddy v The State of Maharashtra, the Bombay High Court examined the issue of “whether requiring the accused to undergo these tests against his will would amount to compelling him to be a witness against himself”. The Court concluded that “…such [a] statement will attract the bar of Article 20(3) only if it is inculpating or incriminating to the person making it. Whether it is so or not can be ascertained only after the test is administered and not before.” Further, the Court was of the view that there are sufficient safeguards under the CrPC, the Indian Evidence Act and the Constitution to prevent the admission of an incriminating statement in a court of law. In Smt Selvi v. Karnataka (2004(7) KarLJ 501), the Karnataka High Court took an extremely narrow view of “compulsion” and held that the only pain caused is from the injection prick and that there is, therefore, no compulsion. 

In effect, by classifying the concerns relating to consent as “premature”, the High Courts failed to appreciate the problematic aspects of an involuntary statement made under a state of unconsciousness. Consent of the subject is a non-issue for the judges. The court’s ruling has completely obliterated the constitutional protection by essentially holding that the accused does not have the right to remain silent. 

Firstly, administration of the drug against the subject’s will amounts to compulsion, defined in the English Law Dictionary to mean “…[A] physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore, extorted.” Secondly, the evidence gathered based on the results of the test can be admitted as corroboratory evidence. Sriram Lakshman, a lawyer, rightly asserts that “[t]his is, arguably, a roundabout way of subverting the right to silence - acquiring the information on where to find the weapon from the subject when, in his right senses, he would not turn witness against himself.” Finally, while the results of the narcoanalysis tests conducted may not be admitted in court, the broadcast of the test conducted on a suspect in a fake stamp paper scam, Abdul Telgi, for instance, has created a prejudice and vitiated the guarantee of a fair trial.  

Right to life and personal liberty 

It is also argued that subjecting persons to such intrusive tests against their will is a violation of their right to privacy and amounts to torture. The right to privacy is not expressly mentioned in the Constitution, but falls within the ambit of the ‘personal liberty’ guaranteed under Article 21 of the Constitution. 

Narcoanalysis arguably falls within the scope of Article 21 by virtue of the invasion of the body and mind, which constitutes an invasion of privacy. The test directly intrudes on the mental processes of the subject, who lacks control over the questioning. There is a risk that the unconscious mind may reveal personal information that is irrelevant to the investigation. It is therefore imperative to establish standards of confidentiality and other safeguards, as privacy can be violated only by “procedure established by law”. No such safeguards exist in India and therefore narcoanalysis particularly if performed without consent amounts to a violation of privacy. 

Regrettably, in Rojo George v. Deputy Superintendent of Police, the Kerala High Court disagreed and held that narcoanalysis test does not amount to deprivation of personal liberty or intrusion into privacy”. Notably, the Court did not substantiate its position and declined to address the intrusion into mental privacy but narrowly restricted the scope of privacy to bodily integrity. The Court also rejected the contention that narcoanalysis can be potentially hazardous and can violate the right to health. 

As narcoanalysis involves the involuntary injection of mind-altering drugs into one’s body, there necessarily arises a question of whether this may constitute torture. Doctors cannot be a party to the “infliction of mental or physical trauma” nor aid or abet torture, as per the Code of Medical Ethics. 

The most commonly cited definition of torture is found in Article 1(1) of the United Nations Convention against Torture (CAT). Mental suffering is a component of this definition. In the narcoanalysis context, this suffering is (1) intentionally inflicted with the purpose of obtaining a confession (2) at the instigation of a public police official. Thus the narcoanalysis test clearly falls within these boundaries of torture as defined here. Unfortunately, there is no such definition of torture under Indian law and the country has not yet ratified the CAT.  

The United Nations Committee Against Torture, while assessing France where truth serums are used in criminal investigation, condemned the use of drugs to extract information, as “although the objective is to lay bare the truth, the truth cannot be sought by any means whatsoever”.  

Judicial sanction  

While the courts in India have dispensed with the requirement of consent of the subjects, they have also declined from exercising judicial oversight over the conduct of the test. In the Rojo George case, the Kerala High Court held that narcoanalysis does not require judicial sanction because it is a “recognised test for an effective investigation.” In the Selvi case  the Karnataka High Court erroneously conflated the conducting of the test with the collection of evidence, which squarely falls within the investigation function of the police. 

The CrPC envisages investigation by a police officer and not a psychoanalyst. How then can this be termed an effective “investigation”?  

Conclusion 

Narcoanalysis tests severely impact the right against self-incrimination and have the potential to impact the fairness of a trial. They foster laxity in the investigation standards of the police who may increasingly rely on the seemingly facile nature of the test.  

Unfortunately, the lack of a clear judicial opinion on the issues of consent and violation of right against self-incrimination makes it difficult to determine the exact legal position of narcoanalysis in India. There is consensus among the High Courts that narcoanalysis may be used as an investigative tool only and not as a source of evidence. This is of little solace, however, due the fact that the process remains unregulated and is a threat to fundamental rights. The Indian Supreme Court is poised to address the issue in the Krishi Bank case. Until then, the tests are likely to continue despite the many problems relating to its use.

 Human Rights Features