Is Narco Analysis a Reliable Science? � Present Legal Scenario In India

The term Narco-Analysis is derived from the Greek word nark� (meaning "anesthesia" or "torpor") and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor. In this state, mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. The term narco-analysis was coined by Horseley. It first reached the mainstream in 1922, when Robert House, a Texas obstetrician, used the drug scopolamine on two prisoners.

The search for effective aids to interrogation is probably as old as humanity�s need to obtain information from uncooperative sources�and as persistent as our desire to shortcut any tortuous path. In the annals of police investigation, physical coercion has at times been substituted for painstaking and time-consuming inquiry, based on the belief that direct methods produce quicker results.

The development of new investigative tools has led to the emergence of scientific methods of interrogation, such as the narco-analysis test. These tests are products of advances in science but often raise concerns about human rights and their reliability. Legal questions are frequently raised about their admissibility in court, with some supporting their validity under legal principles, while others reject them as clear violations of constitutional provisions.

A Brief Outline of the Narco Analysis Test

The narco-analysis test is conducted by mixing 3 grams of Sodium Pentothal or Sodium Amytal in 3000 ml of distilled water. The test involves administering barbiturates�most often Pentothal Sodium�to lower a subject�s inhibitions, with the hope that they will freely share information and emotions.

A person is able to lie by using their imagination. In the narco-analysis test, the subject�s inhibitions are reduced by interfering with the nervous system at the molecular level. In this semi-conscious, sleep-like state, it becomes difficult�though not impossible�for the subject to lie. Efforts are made to extract "probative truth" about the crime.

Experts inject the subject with hypnotics like Sodium Pentothal or Sodium Amytal under controlled laboratory conditions. The dosage depends on the subject�s sex, age, health, and physical condition.

The subject, placed in a state of hypnotism, is not able to speak independently but can respond to specific and simple questions after some prompting. The responses are believed to be spontaneous, as a semi-conscious person is generally unable to fabricate answers.

An incorrect dose can cause coma or even death. The rate of administration is carefully controlled to gradually bring the subject into a hypnotic trance. The drug depresses the central nervous system, lowers blood pressure, and slows heart rate�ultimately reducing inhibitions.

During the trance, investigating agencies question the subject in the presence of medical professionals. The revelations made during the session are recorded in both video and audio formats. The expert-prepared report is used in the process of collecting evidence.

This procedure is carried out in government hospitals and only after a court order instructs doctors or hospital authorities to perform the test. The personal consent of the subject is also mandatory.

Other Associated Truth Finding Tests:

Apart from the narco test, there are two other kinds of tests which are popularly used on the convict for extraction of truth. These are:

I. Polygraph or Lie Detection Test:

This examination is based on the assumption that there is an interaction between the mind and body. It is conducted using various components or sensors of a polygraph machine, which are attached to the body of the person interrogated by an expert.

The machine records blood pressure, pulse rate, respiration, and muscle movements. The polygraph test is conducted in three phases:

• Pretest interview
• Chart recording
• Diagnosis

The examiner (a clinical or criminal psychologist) prepares a set of test questions depending on information about the case provided by the investigating officer, such as criminal charges and statements made by the suspect. The subject is questioned, and the reactions are measured.

A baseline is established by asking questions whose answers are already known. Lying is accompanied by specific, perceptible physiological and behavioural changes, which are exposed by sensors and a wave pattern in the graph. Deviation from the baseline is taken as a sign of lying. These reactions are corroborated with other evidence gathered.

The polygraph test was among the first scientific tests to be used by interrogators. It was Keeler who further refined the polygraph machine by adding a psycho-galvanometer to record the electrical resistance of the skin.

II. P300 or the Brain Mapping Test:

This test was developed and patented in 1995 by neurologist Dr. Lawrence A. Farwell, Director and Chief Scientist at Brain Wave Science, Iowa. In this method, called Brain-wave Fingerprinting, the accused is first interviewed and interrogated to find out whether he is concealing any information.

Then, sensors are attached to the subject's head, and the person is seated before a computer monitor. Certain images are shown, or certain sounds are played. The sensors monitor electrical activity in the brain and register P300 waves, which are generated only if the subject has a connection with the stimulus (image or sound). The subject is not asked any questions.

Dr. Farwell has published that a MERMER (Memory and Encoding Related Multifaceted Electroencephalographic Response) is initiated in the accused when his brain recognizes noteworthy information related to the crime. These stimuli are called target stimuli.

In a nutshell, the Brain Fingerprinting test matches information stored in the brain with information from the crime scene. Studies have shown that an innocent suspect's brain would not have stored certain information, whereas an actual perpetrator's brain would have.

In the USA, the FBI has been using Brain Mapping techniques to convict criminals.

Narco Analysis in India

A few democratic countries, India most notably, still continue to use narco analysis. This has come under increasing criticism from the public and the media in India. Narco analysis is not openly permitted for investigative purposes in most developed and/or democratic countries.

In India, the narco analysis test is performed by a team comprising:

• An anesthesiologist
• A psychiatrist
• A clinical/forensic psychologist
• An audio-videographer
• Supporting nursing staff

The forensic psychologist prepares a report about the revelations, which is accompanied by a compact disc containing the audio-video recordings. The strength of the revelations, if necessary, is further verified by subjecting the person to polygraph and brain mapping tests.

Narco analysis is steadily being mainstreamed into investigations, court hearings, and laboratories in India. However, it raises serious scientific, legal, and ethical questions. These need urgent attention before the practice spreads further.

Narco analysis refers to psychotherapy conducted on a subject by inducing a sleep-like state using barbiturates or other drugs. In several high-profile cases, such as the Nithari killings and the Mumbai train blasts, suspects have undergone interviews while drugged with sodium pentothal.

Narco Analysis from Constitutional & Legal Standpoints

The main provision regarding crime investigation and trial in the Indian Constitution is Article 20(3), which deals with the privilege against self-incrimination. This has equivalents in the Magna Carta, the Talmud, and the laws of almost every civilized country. The privilege against self-incrimination is a fundamental canon of Common Law criminal jurisprudence.

The key principles are:

• The accused is presumed to be innocent.
• It is for the prosecution to establish his guilt.
• The accused need not make any statement against his will.

These principles arise from concerns that if compulsory examination of an accused were permitted, force or torture might be used to entrap him in fatal contradictions. The privilege against self-incrimination thus helps maintain human privacy and uphold civilized standards in the enforcement of criminal justice.

Article 20(3), which embodies this privilege, states: "No person accused of any offence shall be compelled to be a witness against himself."

This provision includes:

• A right available to a person accused of an offence
• Protection against being compelled to be a witness
• Protection against compulsion resulting in self-incriminating evidence

All three conditions must coexist for the protection of Article 20(3) to apply. If any are missing, the Article cannot be invoked.

The application of the narco analysis test raises fundamental questions relating to judicial processes and human rights. Its use as an investigative aid raises genuine concerns about encroachment on individual rights, liberties, and freedom.

Subjecting the accused to undergo the test, as practiced by investigative agencies in India, is considered by many to be a blatant violation of Article 20(3). It also violates the legal maxim Nemo Tenetur Se Ipsum Accusare � �No man, not even the accused himself, can be compelled to answer any question which may tend to prove him guilty of a crime he has been accused of.�

If a confession from the accused is derived from any form of physical or moral compulsion (even in a hypnotic state), it should be rejected by the court. The central issue remains the admissibility of this technique in investigations and its ultimate admissibility in court as forensic evidence.

Section 45 of the Indian Evidence Act, 1872 does allow experts' opinions in certain cases. It reads:

When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impression, the opinions upon that point or persons especially skilled in such foreign law, or of science, or art, or as to identity of handwriting or finger impressions are relevant.

However this section is silent on other aspects of forensic evidence that can be admissible in court in criminal proceedings.

The right against forced self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal Procedure (CrPC) and the Indian Constitution. In the CrPC, the legislature has guarded a citizen's right against self-incrimination. S.161 (2) of the Code of Criminal Procedure states that every person is bound to answer truthfully all questions, put to him by [a police] officer, other than questions the answers to which, would have a tendency to expose that person to a criminal charge, penalty or forfeiture.

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, 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.

Moreover, the tests like narco analysis are not considered very reliable. Studies done by various medical associations in the US adhere to the view that truth serums do not induce truthful statements and subjects in such a condition of trance under the truth serum may give false or misleading answers.

Some Notable Events & Cases of Narco Analysis in India:

1. In a 2006 judgment Dinesh Dalmia v State, the Madras High Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said about the accused: "he may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary." There are two fallacies in this reasoning.
   
   First, if narco analysis is all that it is made out to be by the Bangalore FSL, the accused will involuntarily answer questions posed to him during the interview. The second fallacy is that it is incorrect to say that the accused is merely taken to the lab against his will. He is then injected with substances. The breaking of one's silence, at the time it is broken, is always technically `voluntary.' Similarly, it can be argued that after being subject to electric shocks, a subject `quite voluntarily' divulges information. But the act or threat of violence is where the element of coercion is housed. In narco analysis, the drug contained in the syringe is the element of compulsion. The rest is technically voluntary.
    
2. 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 violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: "No person accused of any offence shall be compelled to be a witness against himself." Statements made under narco analysis are not admissible in evidence. However, recoveries resulting from such drugged interviews are admissible as corroborative evidence.
   
   This is, arguably, a roundabout way to 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. Arguments have been made that narco analysis constitutes mental torture. It works by inhibiting the nervous system and thus lowering the subject's inhibitions. It is not difficult to interpret this as a physical violation of an individual's mind-space. The State police departments are responsible for generating demand for the process. The decision to conduct narco analysis is usually made by the Superintendent of Police or the Deputy Inspector General handling a case.
   
   A high-ranking official in the Karnataka Police told The Hindu that police departments in India have poor skills when it comes to collection, collation, and presentation of evidence before the courts. Consequently, when there is enormous pressure on a police department to solve a case, sending suspects to narco analysis not only buys time but also gives the impression that something concrete has been done about the case.
    
3. In January 24th, 2008, a bench of Chief Justice K.G. Balakrishnan reserved its ruling after hearing arguments for three days from various parties, including Solicitor General Goolam E. Vahanvati and senior advocate Dushyant Dave, appointed by the bench as amicus curiae to assist the court in the case. The bench, which also included Justice R.V. Raveendran and Justice J.M. Panchal, heard the arguments by counsel of various people, including Santokhben Jadeja from Gujarat, popularly known as 'Godmother', and some accomplices of fake stamp paper case accused Abdul Karim Telgi. Telgi and his accomplices are facing probe by various states' police and other investigative 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.
   During the arguments, Vahanvati justified the use of these three tests, saying they have the legal mandate under Section 53 of the Criminal Procedure Code (CrPC), which lists a host of various modern techniques like DNA fingerprinting and collection of blood samples as perfectly legal tools to probe a crime. He said the term 'such other tests' occurring in the explanatory note of the Section 53 includes these three tests too.
   
   'If these tests are properly considered to be steps in the aid of investigation and not for obtaining incrimination statements, there is no constitutional infirmity whatsoever,' said Vahanvati. 'These tests are scientific methods in furtherance of investigation. All these tests are considered to be the part of the process of collection of some subsequent evidence.
   
   'These tests may provide some clues to the investigative agency to collect some evidence but the statements given by the accused against themselves during these tests are not of any evidentiary value,' clarified the law officer.
   
   But Dave during his arguments, contended that parliament never intended to include these tests as tools for probe as Section 53 was last amended in 2005, when a list of various modern scientific techniques was included in it as legal tools for investigation. Dave also contended that the use of these three tests as tools of investigation is not validated by Article 20(3) of the constitution, which says: 'No person accused of any offence shall be compelled to be a witness against himself.'
    
4. In Shashi murder case, Court allows narco-analysis. Vijaysen Yadav, the main accused in the disappearance and murder case of Faizabad law student Shashi, has gone through polygraph and narco-analysis test from January 12 to 26. Faizabad Chief Judicial Magistrate Shailesh Tiwari permitted the police on Friday to conduct the tests at the Central Forensic Laboratory in Bangalore.
   
   In his order, the CJM said the tests on Vijaysen will be conducted in judicial custody and prohibited investigating Officer Sharat Chandra Pandey from intervening in any matter during the process of tests. The court also asked him not to accompany Vijaysen to Bangalore.
    
5. The Bombay High Court recently in a significant verdict in the case 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 being made and the statement made under narco analysis was not admissible in evidence during trial. The judgment also held that these tests involve minimal bodily harm.
    
6. Narco-analysis of Moninder Singh Pandher, had started on Tuesday, January 09, The narco-analysis test of the prime accused in the Noida serial murder case Moninder Singh Pandher was conducted at the Directorate of Forensic Laboratory. Pandher and Koli have been accused of serial killing of women and children in Nithari village, in Noida, Uttar Pradesh. The Nodia police had brought Pandher and his servant Surendra Koli to DFS on January 5 for forensic tests. The tests are expected to go on for approximately eight hours, the sources said.
    
7. 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.

The Degree of Admission of These Truth Finding Tests in Court-

Lawyers are divided on whether the results of Narco Analysis and P300 tests are admissible as evidence in courts. "Confessions made by a semi-conscious person is not admissible in court. A Narco Analysis Test report has some validity but is not totally admissible in court, which considers the circumstances under which it was obtained and assess its admissibility," advocate P. R Vakil told rediff.com. "Under certain circumstance, a person may hold a certain belief. By repeatedly thinking about an issue in a particular way, he begins to believe that what he is thinking is right. But it need not necessarily be the truth," Vakil explained. Results of such tests can be used to get admissible evidence, can be collaborated with other evidence or to support other evidence. But if the result of this test is not admitted in a court, it cannot be used to support any other evidence obtained the course of routine investigation."

Criminal lawyer Majeed Memon said, "If the courts give permission to conduct these tests, then only it can decide the admissibility of the test results and other related evidence. Such reports can be used as evidence or to support other evidence." Another criminal lawyer Sham Keswani has a different view. "Such tests don't have any legal validity. They can only assist the police investigation. But, in case a person is not affected by the chemical, he might take some wrong names (to mislead investigators). The results of such tests can be used to support other evidence," he said.

Conclusion-
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 seroiusly rethink about its legal and constitutional validity from human rights perspective.

References & Acknowledgements-
# Supriya Rai, Narcoanalysis Test Constitutional Imperatives, SLS
# Jagadeesh N: Narco analysis leads to more questions than answers
# Jesani A. Medical professionals and interrogation: lies about finding the truth. Indian J Med Ethics 2006 Oct-Dec; 3: 116-117.
# Hem Raj Singh: Narco Analysis: constitutionally Questionable, Lawyers Update.

The author can be reached at: [email protected] / Print This Article

Also read
Brain Mapping Test - Narco Analysis Test in India
What is Brain Mapping Test
The Brain Mapping Test is also known as P-300 test. In this test of Brain Mapping the suspect is first interviewed and interrogated find out whether he is concealing any information. The activation of brain for the associated memory is carried out by presenting list of words to the subjects.

Forensic Science:
Forensic science is defined as the application of science in answering questions that are of legal interest. More specifically, forensic scientists employ techniques.

Forensic Evidence:
The mystic theories there to fore advanced to explain the scheme of things began to lose ground as the clear, cold logic of scientific experiment gradually shed a new light

Narco Analysis:
Concept of Narco- Analysis, its process, its legal aspects and recent position in India. It also gives a short reference to other two popular but doubtful truth finding tests which also created a great deal of controversy in recent years

Narco Analysis: A Volcano In Criminal Investigation System:
The revolution in scientific technology is waving like fast flowing air and water in the modern world of advancement. The field of law is also under the shadow of scientific advancement.

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