Muskan Bansal, pursuing B.com;LL.B.(Hons.) from Institute of Law, Nirma University.
THE VALIDITY OF THE USE OF NARCO-ANANLYSIS AND ITS IMPORTANCE IN THE LIGHT OF NATIONAL SECURITY
Horseley invented the term Narco Analysis. Narco analysis first entered the mainstream in 1922, when Robert House, a Texas obstretrician tested the drug scopolamine on two inmates. Narco Analysis Test or Narco Test relates to the process of injecting barbiturates or any other chemical agents, most commonly Pentothal Sodium, to reduce the inhibitions of a person, in the expectation that the person can express knowledge and emotions more openly.
A individual may lie using his or her imagination. In the Narco Analysis Test the inhibitions of the target are reduced by interacting at the molecular level with the nervous system. It becomes challenging but not necessary for him to deceive in this situation. In such sleep-like condition attempts to gain “probative evidence” regarding the offense are being made. Under laboratory monitored conditions, experts inject a subject with hypnotics such as Sodium Pentothal or Sodium Amytal. The dosage may depend on the sex, age, health and physical state of the individual. The target placed in a state of hypnotism is not in a condition to talk on its own, however after certain advice, it will address basic yet easy questions.
Such testing is not necessarily admissible in the courts of law. It notes that subjects in a semi-conscious state may not have the mind set to address any questions properly, whereas some other tribunals freely recognize them as facts. Studies have demonstrated that narco-analysis is feasible, and its effectiveness as an investigation technique in most countries is being challenged. A few democratic countries prefer to use narcoanalysis, most prominently India. This has come up under growing scrutiny from the country’s public and media. In most industrialized and/or democratic countries narcoanalysis is not freely allowed for investigating purposes.
Since Narco testing has been widely debunked in most democratic nations, there is a huge body of literature challenging the capacity to provide legal facts. Narcoanalysis also has significant consequences on law and ethics.
There have been occasions where inhumane practices such as torture were used in objective to derive facts from the most violent of offenders. These practices were often in conflict with the accused’s fundamental human rights. The post-colonial era in India and the post-World War era worldwide, witnessed the emergence of stern civil rights measures. The emergence of such groups came to be widely criticized for adhering to the most basic human rights standards and physical torture as a form of questioning. The officials no longer tolerated the relationship that existed between law and violence.
The International Civil and Political Rights Convention stipulates that any citizen has a right to a fair trial. Everyone is entitled to a fair and impartial trial within a reasonable period in deciding the civil rights and duties of a case or in any criminal offense. This must appear before an unbiased and neutral tribunal set up by law.
Admissions rendered without the permission of the victim are omitted because the usage of forced confessions is repugnant to the very nature of fairness. It is agreed that people under the influence of narcotics are extremely suggestible; so much so that they can admit to offences which they did not actually commit.
Truth serum has also been prescribed as a last resort means after the such questioning techniques have collapsed. There is also a risk that the offender will make false claims or conceal evidence, under the influence of the substance. Reliability is also at problem since the usage of narco-analysis would not guarantee the reliability of the answers provided during the interrogation.
- LEGAL PROVISIONS
Including confessions, testing for narco-analysis usually holds minimal legal legitimacy because it is performed by a semi-conscious individual and is not admissible in law. However, after considering the circumstances in which the examination was obtained the court may grant minimal admissibility. Narco-analysis, brain imaging and lying detector checks against the accused’s will, breaches Article 20(3) of the Constitution.
The key clause in the Indian Constitution concerning the prosecution and conviction of crime is Art. 20(3). It addresses the right of self-incrimination. The right against ‘self-incrimination is a basic principle of criminal jurisprudence in common law. Article 20(3) that expresses this right specifies that “No person accused of any crime shall be required to be a witness against himself.” The exertion of the convicted to the scrutiny, as the investigating agencies in India have done, is deemed by many to be a gross breach of Art.20(3) of the Constitution.
The implementation of the Narco-analysis test includes the underlying issue of legal and human rights concerns as well. The legal status of using this methodology as an investigation help poses serious concerns such as violating the privileges of a person. In the case of State Bombay v. Kathikalu, it was held that it had to be shown that the accused was compelled to make a statement likely to be incriminative of himself. Compulsion implies duress, which involves the assault, beating or incarceration of a person’s wife, parent or infant. Therefore, if the perpetrator renders a statement without any coercion, intimidation or pledge, then Article 20(3) does not applied. Therefore, the right against self-incrimination provides for the protection of personal dignity and the observance of humane norms of criminal justice compliance.
The right against coerced self-incrimination is enshrined in the Code of Criminal Practice (CrPC) and the Indian Constitution, commonly recognised as the Right to Silence. In the CrPC the legislature has secured against self-incrimination the freedom of a individual. S.161(2) of the CrPC notes that each citizen “is expected to answer truthfully all the questions that a police officer poses to him rather than asking the responses that might appear to subject him to criminal proceedings, fines or forfeiture.” Narco-analysis is considered to constitute psychiatric punishment and therefore infringe the right to life under Article 21, since it conflicts with the right to privacy. Again, rule prohibiting interference into individual’s privacy does not enable proof of brain fingerprinting to be submitted in court.
Right to Silence was given to the accused in the case of Nandini Sathpathy v. P.L.Dani by way of the pronouncement, no one may physically obtain answers from the accused, who is allowed to stay quiet throughout the process of the investigation. By conducting these examinations, aggressive interference into one’s mind is reinstated, thereby annulling truth and legitimacy of the provision. Often, measures such as Narco-analysis are not found to be really accurate. Studies performed by separate medical organizations in the US take the opinion that truth serums should not cause honest claims and subjects in such a trance, it may give false or misleading answers. In M.P.Sharma v. Satish Chandra, the Supreme Court stated that because the terms used in Article 20(3) were “to be a witness” and not “to appear as a witness,” immunity was applied to compelled proof gathered outside the courtroom.
- PRACTICE IN INDIAN COURTS
A few democratic countries prefer to use narco-analysis, most prominently India. In most developed and democratic countries narco-analysis is not openly permitted for investigative purposes. In India, a team consisting of an anesthesiologist, a psychiatrist, a clinical / forensic psychologist, an audio-videographer, and supportive nursing personnel performs the narco-analysis examination. The forensic psychologist writes the revelations report, which is supplemented by a small audio-video storage disk. If required, the impact of the findings is further checked by the individual being exposed to polygraph and brain mapping tests.
Now a days, narco-analysis is being continuously mainstreamed into trials, court proceedings, and labs in India. The decision of an 11-judge bench in the case of the State of Bombay v. KathiKalu Oghad, it was observed that self-incrimination includes the sharing of details dependent on the person’s personal awareness and can not involve only the technical method of document creation in court. In the case of Ram Jawayya Kupar, it was held that executive authority can not intervene either with constitutional rights and independence, or with any other rights of a individual, and it was also observed that, in the absence of any law, an interference into fundamental rights must be regarded as unconstitutional.
IMPORTANCE IN NATIONAL SECURITY
In situations where organized crime is committed over vast numbers of individuals, the nature of the case involves the usage of certain sophisticated technological techniques. Here, the common interest of the society is put on a common pedestal and the interests of the citizen may be put on negligence.
In Selvi Murugeshanv. State of Karnataka, the Karnataka High Court stated that society has the right to be safe from crime and general societal interest can be considered to be put on a higher pedestal and human freedom can be overlooked. and that society’s privileges are “manifestly superior” to criminal privileges.
In practice, national officials are best positioned to decide on the nature of risks to their national security. They are in constant and consistent touch with the urgent needs of the moment, and with the existence and duration of the derogations required to avoid it. Therefore the national authorities are left with a broad range of approval.
Forensic psychology plays an significant part in identifying incidents of crime. Narco-analysis and brainwave fingerprinting aid to expose attackers’ potential intentions Preventive forensics play a critical function in combatting acts of terror. To identify and nullify its intentions, forensic potentials must be exploited. Orthodox strategies showed a mistake to cope with them. The forensic person should have forensic equipment carried to help an ordinary man. Forensic advocacy is the way to help combat crime.
The present structure of criminal justice is afflicted of human rights and freedom, and in this sense a secure passage is possible for offenders owing to the failure of the criminal justice system contributing to dilution of facts. Although the legitimacy of the narco-analysis test and its admissibility is quashed by the Supreme Court, taking into account the conditions in which it was collected, will weaken the justice system. It is suggested that if the requirement of conducting the narco-analysis test is rendered obligatory in severe crimes for the accused / witness, it could pave the way for enhancing the standard of criminal justice by increasing the proof framework. This transition would add a qualitative change to the criminal justice system. It may be assumed that the Narco test is immoral when everything fails to investigation. “Accused is innocent until proven guilty” and the same principle should be upheld while conducting any criminal investigation. But on the contrary, there should not be a complete ban of advanced scientific methods like narcoanalysis as hampers the advancement of the criminal system and hence they should be rightfully employed to assist in the Criminal procedure.