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CONSTITUTINALITY OF NARCO ANALYSIS IN INDIA

Written by Aathmaja Menon, II year SASTRA, Deemed to be University


What is Narco analysis?

Narco analysis, also known as truth serum, is a psychological test that is used on the accused or criminals to bring out the exact truth information when they are in an unconscious or hypnotic state. This process is done by injecting a psychotropic drug and the dose of the drug will be determined on the basis of a person’s age, sex, health and physical condition. The dose of the drug may differ from person to person according to their mental stability, mental power and physique. The drug is injected to induce a torpor in which mental elements with strong associated effects come to the action and then the resulting mental situation of the person is exploited and utilized by the psychiatrist. This test is done in extreme conditions where it is essential to know the truth and when the police or the investigators are sure that the accused has not disclosed the full matter. For the test to be a success, a competitive, skilled and experienced, an interviewer or a questioner should be placed and he should be able to ask successful questions. The term “narkc” is greek and its meaning is “anesthesia” and the term “narco analysis” was coined by Horseley.

Narco analysis under Article 20

Article 20 of the Constitution of India states the “protection in respect of conviction of offences”. Article 20(3) of the Constitution of India provides that no person accused of any offence shall be compelled to be a witness against himself. It prohibits self-incrimination. Generally, Narco-analysis is not constitutionally valid and not admissible in the court because the test is always done on a half-conscious person or a person with no clear state of mind and without his/her consent. Under this stage, the person is likely to disclose matters that he would not do if he were in a conscious and normal state. This is leveraging the mental state of a person and also having an unrestricted control over the privacy of his mind. Basically, the accused is involuntarily utilized as a witness against himself. In the famous case, Ashish Jain v. Markand Singh(1), it was held that a confessional statement of the accused found to be involuntary is hit by Article 20(3). In another famous case, M P Sharma v. Satish Chandra(2), it was held that the Article 20(3), can be used as a right by a person who is accused of an offence, it can be used as a protection against compulsion to be a witness and also can be used as a protection against compulsion of him being a witness against himself. In the case, State of Bombay v. Kathi Kalu(3), it held that the above given case explanation for “to be witness” was too wide and broad and required a qualification. It was held that it should be shown that the accused was compelled to make the statement which would likely incriminate himself. Thus, when a person gives a finger impression or signature in a wide sense, it may come under “furnishing of evidence” but definitely not under the term “to be a witness”. But later in the case, State v. M. Krishna Mohan(4), it was held that finger print, specimen writing or signature from the accused is not prohibited by Article 20(3) as being “the witness against himself”.


The protection under the Article 20 (3) is given only against the compulsion of the accused to be the witness “against himself”. Thus, if he is giving any witness or confessional statement without any compulsion or any inducement, this article cannot be used for protection and cannot be applied. In the case, Nandini Satpathy v. P L Dani(5), the court held that the scope of prohibition under Article 20(3) starts from the stage of questioning and interrogation of the police not the procedure in the court alone. In the case, Yusufali v. State of Maharashtra(6), the court held that a tape recorded confession made by the accused without his knowledge, but also without compulsion or inducement, it would be taken in account as an evidence.


In the landmark case of Selvi v. State of Karnataka(7), the issue was about the validity of techniques like Narco analysis, Polygraphy and Brain mapping without the consent is violative of Article 20(3) of the Constitution of India. It also held that this is violative of right to privacy as this is a clear invasion of a person’s unconscious mind. Article 21 of the Constitution of India deals with right to life and personal liberty, and it was argued that this article does not approve of imperative confession irrespective of the degree of the coercion used like threats, fraud and inducement. But, finally, the court held that the legislature has the power to consider and make proper laws on this matter. But if this matter comes in the hands of the court, then it shall interpret the mandate of the constitutional provisions given to the citizens and would apply in their favor. The court also set up some important guidelines for conducting the Narco-Analysis Test:

  1. The accused will be given an option to choose whether they should avail such test.

  2. The accused will have the right to be aided by a lawyer if he gives consent for the Lie detectors Test because only lawyer or police are allowed explain the implications to the accused.

  3. The Judicial Magistrate must have the consent recorded with them.

  4. The accused should be represented by his lawyer before the Magistrate hearing.

  5. It should be made clear to the accused that the statement if made shall not be confessional statement to the magistrate but akin to a statement made to the police.

  6. The Magistrate will take decisions on all the factors relating to the accused.

  7. The Lie detector test will be recorded and it will be done by an independent agency and will be held in the presence of a lawyer.

  8. A full medical and factual report of the manner of the information received.

Criticisms on Narco analysis

The process of Narco analysis is not always successful and it is not 100% accurate. Even if the accused are on a psychotropic drug, there have been situations where they give false statements. So, since there have been unsuccessful attempts, the confession in front of the police before the usage of the drug should not be compared with the one made after the drug. It is not much of a help in case of malign, evasive or untruthful persons. When this test is used on suspects of crimes, then there are more chances of them holding the truth to themselves even if they are drugged and they would narrate untrue events or make vague statements. Thus, it is more unsuccessful when it is done in cases of crimes because the test brings out the memories that had been already forgotten and restores those memories back into the persons head.



Reference:


(1) AIR 2019 SC 546

(2) AIR 1954 SC 300

(3) AIR 1961 SC 1808

(4) AIR 2008 SC 368

(5) AIR 1977 SC 1025

(6) AIR 1968 SC 147

(7) AIR 2010 SC 1974

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