With the consistent and constant advancements in science and technology, there has been a noticeable shift in the way criminal investigations are conducted. The traditional methods of investigating a crime have given way to scientific methods. Narco-analysis, brain mapping, polygraph, neuroimaging, and other techniques have altered the landscape of criminal law.

The purpose of this study is to assess the evidentiary value of narco-analysis and brain mapping as diagnostic procedures, as well as their legality in India. It also examines a landmark case in which the Supreme Court of India debated its significance and issued instructions on the subject.

The way the police investigate a case or interrogate an accused has evolved over time, and new methods have been adopted by the police. Crime is an example of a concept that has changed over time. The criminals gathered expertise and began to adopt new methods of doing their activities. As a result, even the authorities must develop new approaches to investigating and interrogating the crime. Scientific methods are one of the methods used by the police while investigating and interrogating a case.

Narco-analysis has recently been a hot topic among the legal community, the media, and the general public. The development of new investigative methods, such as narco-analysis tests, has resulted in the introduction of scientific interrogation tools. With the recent advancement of technology in almost every aspect of life, criminal investigation is no longer immune to its consequences. Narco-analysis is one of these scientific forms of investigation in which the accused makes a statement that may be utilised as evidence.

The Evidence Act is absolutely silent on the use of scientific process in this manner. Such a procedure has been condemned for violating the Constitution's foundations, but it has also been defended as necessary for evaluating some complex situations. Is the Narco-analysis technique infringing on the freedom to self-incrimination protected by Article 20 (3) of the Constitution?

It was recently in the news when it became the centre of a storm and caused a discussion when the media portrayed the Unnao rape case in Uttar Pradesh. When the accused wanted a Narco test for justice and faith in the criminal justice system, he was subjected to one.

In order to assist the police with their investigation and interrogation procedure, forensic science has various departments. The lie-detector division is one such division. Polygraphy tests are the subject of this branch of forensic science. This category can be considered a recent addition to the field of forensic science. It aids the police in questioning a suspect or an accused person. In general, forensic science refers to the scientific reasoning utilised by courts to decide a case.

Narco-analysis is a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. It is derived from the Greek word narkç (meaning "anaesthesia" or "torpor"). Horseley coined the phrase "narco-analysis." At the junction of law, medicine, and ethics, narco-analysis raises various concerns.

The initial attempt to create a device that can detect lies was pretty basic. The initial equipment was simply designed to detect variations in the person being questioned's blood pressure. Later on, the machine received modifications or developments. John Reid, a scientist, updated the device and provided the technique for performing the test effectively. The polygraphy machine became more versatile and reliable after subsequent advancements and updates. When compared to other scientific procedures, polygraphy testing is currently more practical and accurate in detecting lies.

Mechanism of Polygraphy Test

The polygraphy test, often known as the lie-detector test, is a type of lie-detector test. Polygraphy is a technique used by cops to evaluate if someone is telling the truth or lying. In recent decades in India, this technology may have been used in the interrogation process. This instrument's technique, however, has a long history. The technique of one saying whether something is true or not dates back to ancient China. People in ancient China used to force suspects to eat dry rice powder and chew it because they believed that when a person is afraid or stressed, they don't generate saliva.

As a result, if the powder stayed dry, he or she is guilty. This method/belief of people may not be entirely trustworthy. However, it is true that when a person lies, bodily changes such as an increase in blood pressure and a few observable movements in the body occur. The scientist has created a device that uses this technique and principles to observe changes in the human body. Polygraphy, or a lie detector, is the name of the instrument.

The initial attempt to create a device that can detect lies was pretty basic. The initial equipment was simply designed to detect variations in the person being questioned's blood pressure. Later on, the machine received modifications or developments. John Reid, a scientist, updated the device and provided the technique for performing the test effectively. The polygraphy machine became more versatile and reliable after subsequent advancements and updates. When compared to other scientific methodologies, polygraphy is currently more practical and accurate in detecting lies.

The psychosomatic interaction is a psychological principle that the exam relies on. The principle is concerned with tiny physical changes in the human body. Changes in respiration, such as heavy breathing, Galvanic skin resistance, blood pressure or pulse rate, muscular pressure, finger pulse, and body temperature are all examples of changes. When someone lies or makes a false statement, they are afraid of being detected, so they suppress their feelings, resulting in mental turmoil. All of these reactions cause physical and psychological changes in the person.

The following is how the lie detector gadget is fitted to the suspect being questioned:

1. One pneumograph tube is worn around the subject's chest and the other around his belly to record variations in his breathing patterns while he is being questioned.
2. His upper arm is fitted with a standard blood pressure cuff.
3. A small electric current is supplied through electrodes affixed to his fingers (index or ring finger) to measure the galvanic skin reflex.
4. The chair he/she is seated in is used to measure his/her body motions and pressure. The chair is made in this manner.

Constitutional & Legal Provisions on Narco-analysis in India

Narco-analysis tests, like confessions, are not legally valid because they are performed on a semi-conscious person and are not admissible in court. However, after analysing the circumstances in which the test was taken, the court may award limited admission. Article 20 (3) of the Constitution prohibits the use of narco-analysis, brain mapping, and lie detector tests against the accused's will. Art. 20 of the Indian Constitution is the most important section concerning criminal inquiry and trial (3).

It is about the right to remain silent in the face of self-incrimination. A key canon of Common law criminal jurisprudence is the privilege against self-incrimination. "No person accused of any offence will be compelled to be a witness against oneself," reads Art. 20(3), which enshrines this privilege. Many people believe that subjecting the accused to the test, as has been done by Indian investigating authorities, is a flagrant breach of Article 20 (3) of the Constitution.

The use of the Narco-Analysis Test raises a fundamental question about judicial matters as well as Human Rights. The legality of using this technique as an investigative tool raises serious concerns about infringement on a person's rights, freedoms, and freedom. In the case of State of Bombay v. Kathikalu[1], it was held that the accused must be forced to give a statement that is likely to incriminate him. Compulsion is defined as the threat, beating, or imprisonment of a person's wife, parent, or kid. As a result, where the accused gives a confession without being coerced, paragraph 20(3) does not apply. As a result, the privilege against self-incrimination allows for the protection of human privacy and the application of civilised principles in criminal justice.

The right to silence, often known as the right against forced self-incrimination, is protected under the Code of Criminal Procedure (CrPC) and the Indian Constitution. The legislature has protected a citizen's right against self-incrimination in the CrPC. According to Section 161 (2) of the Code of Criminal Procedure, everyone "is required to answer truthfully all inquiries, presented to him by a police officer, except than those whose responses would have a tendency to expose that person to a criminal accusation, penalty, or forfeiture." Narco-analysis is believed to be mental torture and consequently infringes on the right to life under Article 21, which deals with the right to privacy.

The right to silence has been provided to the accused as a result of the decision in Nandini Sathpathy v. P.L.Dani[2] that no one can forcibly extract statements from the accused, who has the right to remain silent during interrogation (investigation). The validity and legitimacy of the Right to Silence are nullified by the application of these tests, which restores forcible interference into one's thinking. She asserted that Article 20(3) of the Constitution and Section 161 (2) of the Cr. P.C. gave her the right to remain silent. Her appeals were upheld by the Supreme Court.

Furthermore, tests such as Narco-analysis are not thought to be highly reliable. Truth serums do not induce truthful replies, according to studies conducted by numerous medical societies in the United States, and participants in such a state of trance under the truth serum may give inaccurate or misleading responses. The Supreme Court held in M.P.Sharma v. Satish Chandra[3] that because the terms "to be a witness" and not "to appear as a witness" were used in Article 20(3), the protection is extended to coerced testimony acquired outside the Courtroom.

The term Right to Privacy is a catch-all term that encompasses a wide range of rights that are acknowledged as intrinsic concepts of ordered liberty. The right to privacy is a person's right to be left alone and to be free of undesired publicity. 6 Article 21 of the Indian constitution guarantees citizens the right to life and liberty, which includes the right to privacy.

Without his permission, no one can write anything on the above topics, whether true or false, laudatory or critical. If this is done, it will be infringing on the person's right to privacy and will be subject to a civil case for damages. The preservation of life, liberty, and freedom is enshrined in the Indian constitution.

If this is done, it will be infringing on the person's right to privacy and will be subject to a civil case for damages. The preservation of life, liberty, and freedom has been interpreted throughout the Indian constitution, and Articles 14, 19, and 21 are the best examples of any constitution against the right to privacy.

Practise of Narco Analysis in India

Narco-analysis is still used in a few democratic countries, most notably India. In most developed and democratic countries, narco-analysis is not openly permitted for investigative purposes. An anesthesiologist, a psychiatrist, a clinical/forensic psychologist, an audio-videographer, and accompanying nursing staff perform the Narco-analysis test in India.

The forensic psychologist draughts a report on the revelations, which is accompanied by an audio-video compact disc. If necessary, the strength of the revelations is further validated by administering polygraph and brain mapping tests to the person.

Narco-analysis is increasingly being used in investigations, court hearings, and laboratories in India these days. In the matter of State of Bombay v. KathiKalu Oghad[4], an eleven-judge bench issued a decision. where it was stated that self-incrimination refers to transmitting information based on a person's personal knowledge and does not refer to the mechanical process of producing documents in court. In the case of Ram Jawayya Kupar[5], it was held that executive power cannot infringe on constitutional rights and liberty, or any other rights of a person, and that an infringement on basic rights must be thrown down in the absence of any law.

Admissibility of Narco Analysis in Court

As previously said, the polygraphy test is one of the new methods used by the police to facilitate the investigation process. Polygraphy tests are classified under Deception Detection Tests. New methods such as narco-analysis and brain-mapping are included in the DDT. These modern approaches are less aggressive than older methods such as third-degree questioning; the polygraphy test, for example, causes no harm to the accused and aids in the inquiry more correctly.

However, these modern methods of investigation or interrogation (especially polygraphy tests) typically follow the process of gathering information from the accused, which may be used against him.

While Narco-analysis provided a wealth of information, it also raised numerous problems, as several critics expressed grave reservations about the use of serum on the witness to extract truth. Narco-analysis is seen as a tool or help for gathering and substantiating evidence. However, questions have been raised as to whether it constituted to judicial testimonial compulsion and a breach of human rights, individual liberty, and freedom.

Lawyers are split on whether the results of Narco-analysis and P300 tests are admissible in court as evidence, claiming that confessions made by a semiconscious person are not. A Narco-analysis test report has some validity, but it is not completely admissible in court, which examines the circumstances of its acquisition while determining admissibility. The results of such tests can be used to get admissible evidence, be combined with other evidence, or be used to back up other evidence. However, if the results of this test aren't accepted in court, they can't be used to back up any other evidence gathered during a normal investigation.

Narco-analysis was first utilised in India in the Godhra atrocity case in 2002. It was also in the news after the notorious Arun Bhatt kidnapping case in Gujarat, in which the accused refused to undergo narco-analysis before the National Human Rights Commission and the Supreme Court of India. When Abdul Karim Telgi was put to the test in December 2003 as part of the Telgi stamp paper hoax, it was once again in the news. Though an enormous amount of material was obtained in the instance of Telgi, questions were raised concerning its value as evidence. The infamous Nithari village (Noida) serial killings thrust narco-analysis into the spotlight.

In general, the accused is disclosing material that could be used against him in a court of law. A person cannot be a witness against oneself, as stated in Article 21(3) of the Indian Constitution. This law is broken by the findings of the polygraphy exam. As a result, this cannot be used as evidence in a court of law.

The national human rights commission has issued rules for administering the polygraphy exam without breaching Article 21 of the Indian constitution, which states that personal liberty and the right to privacy are protected under the law. Prior to these standards, polygraphy tests were not administered properly, such as when the accused was forced to take the test in fear and under duress, and the test findings may not have been reliable or real, and the process also violated an individual's personal liberty. However, even after the rules were established, there have been instances where the testing agencies followed the NHRC's guidelines.

Furthermore, the scientific community believes that the polygraphy test may be inaccurate in a few instances. Because the accused/subject being questioned may not be guilty, yet he may panic as a result of the interrogation and atmosphere, or for any other reason, causing the reading on the chart to be erroneous. As a result, an innocent person who has done no crime gets sentenced to prison.

Lawyers are split on whether the results of Narco-analysis and P300 tests are admissible in court as evidence, claiming that confessions made by a semiconscious person are not. A Narco-analysis test report has some validity, but it is not completely admissible in court, which examines the circumstances of its acquisition while determining admissibility. The results of such tests can be used to get admissible evidence, be combined with other evidence, or be used to back up other evidence. However, if the results of this test aren't accepted in court, they can't be used to back up any other evidence gathered during a normal investigation.

State of Karnataka v. Smt. Selvi [6]

"The results of polygraphs and other lie-detection tests are testimonial because the tests are essentially inductive evidence of the defendant's epistemic state, whether they need a voluntary response or not." They are pieces of evidence that purport to tell us either:

1. whether we may or cannot trust the defendant's assertions for which he has claimed authority, or
2. what propositions the defendant would claim authority for and invite reliance on if he testified truthfully.

As a result, a polygraphy test cannot be used as evidence. However, the Indian Evidence Act of 1872, Sections 45 and 45A, provide that Which states that the court can seek an expert's opinion in any field relevant to the issue. Things like foreign law, science, art, handwriting identification, and finger impressions are examples of areas where the judge has little understanding.

Then getting an expert's advice will assist you move on with the lawsuit. Although a polygraphy test cannot be used as evidence, it can be used as an expert opinion under Section 45A of the Evidence Act. In addition, the polygraphy test can assist police officers in moving the case forward.

Right to Self-Incrimination- Is it against Public Interest

Another point of view on the legality of the Narco-analysis test is that it is utilised as a tool for gathering evidence and aiding in investigations, and so does not constitute testimonial compulsion. As a result, it does not violate the constitutional rule prohibiting self-incrimination. Supporters of the Narco-analysis test believe that it is particularly effective when it is necessary to elicit required information in order to avoid terrorist offences.

However, its implementation must be rigorously evaluated so that it can be replaced by current traditional interrogation methods that have brought shame, ignominy, and dishonour to police, eroding the criminal justice system's credibility. Narco-analysis has the potential to become a viable alternative to brutal third-degree procedures. However, care must be taken to ensure that the method is not misapplied or exploited by the investigating officer, and it should be paired with corroborative evidence.

The Supreme Court has ruled in Selvi v. State of Karnataka[7] that using narcotics analysis, brain mapping, and polygraph testing on accused, suspects, and witnesses without their agreement is unconstitutional and a breach of their right to privacy.

In a 251-page decision, a three-judge panel comprised of Chief Justice K.G. Balakrishnan, Justices R.V. Raveendran, and J.M. Panchal said:
"We believe that no one should be forced to use any of the procedures in question, whether in the context of criminal investigations or otherwise." This would be an unjustified infringement on personal liberty."

According to the judges:
"The mandatory use of the contested methodologies infringes on the right against self-incrimination." If the test findings were obtained through coercion, they cannot be entered into evidence. Article 20 (3) of the Constitution [No person accused of any crime shall be compelled to be a witness against oneself] safeguards an individual's right to speak or keep silent, regardless of whether the later testimony is incriminatory or exculpatory."

The Bench went on to say:
"Article 20 (3) is intended to prevent the coercive transmission of intimate knowledge pertinent to the facts at hand. The results of each of the challenged tests have a testimonial quality to them and cannot be classified as material evidence."

"It is our considered conclusion that involuntary exposure to the accused practises violates the prescribed boundaries of privacy," the CJI said.
The Court decided that requiring the use of these procedures would be a violation of Article 20.(3). Even if the subject had given consent to conduct any of these tests, the results could not be admissible as evidence on their own because "the subject does not exercise conscious control over the replies during the administration of the test." Any information or material uncovered later with the use of voluntary administered test results, on the other hand, can be allowed.

Legal Requirement
The National Human Rights Commission provided instructions regarding the administration of polygraph tests to suspects in letter number. 117/8/97–8 dated 11/01/2000. The following criteria are intended to ensure that the polygraphy test is used fairly and without violating a subject's human rights.

1. The subject, i.e., the accused, should provide his or her agreement to the Lie Detector/Polygraphy Test. The subject should be given the option of taking a polygraphy exam or not.
2. When a subject agrees to a test and provides his agreement to have a Lie Detector/Polygraphy Test performed on him, he should be aware of the test and its legal ramifications. The police and his lawyer should provide him with the necessary information regarding the exam.
3. The subject's assent must be recorded in front of a Judicial Magistrate.
4. The police must demonstrate the court that the accused agreed to the polygraphy test when the findings are presented to the Magistrate during the hearing. And the lawyer is the one who presents these papers to the judge.
5. The accused who has been questioned should also be aware of the fact that the words he says during the polygraphy test are only comments to the police, not confessions.
6. The judge would evaluate the circumstances such as how long the prisoner has been detained and how the interrogation was performed while considering a polygraphy test.

The National Human Rights Commission issued these rules in response to a petition filed by Shri Indra P. Choudhry in 1997. The petitioner was apprehended by police and subjected to a polygraphy test after being disturbed by their treatment. He gave his assent to the polygraphy test, and he was not in his right mind when he was questioned.

Taking all of this into account, the commission devised these guidelines for a more efficient administration of the test. Because this is a psychological test, it will focus on human behaviour. If the test isn't done correctly, the results will be inaccurate and can be used against the accused in an unfair way.

Criticism
Narco-analysis has been chastised for not being 100 percent correct. Certain subjects were discovered to have made completely fraudulent statements. It is frequently ineffectual in obtaining the truth, hence it should not be used to compare previous statements made to the police prior to the use of drugs. It has been discovered that a person who has given incorrect information has done so even after the medicine has been administered. It won't help you if you're dealing with a liar or someone who is evasive and untrustworthy. 9 It is quite difficult to provide an appropriate medicine dosage for a certain individual.

The drug dose will vary depending on the subject's willpower, mental attitude, and body. Injection is not required for a successful Narco-analysis test. A knowledgeable and skilled interviewer who is trained in posing recent and successful questions is necessary for its success. The narco-analysis test restores memories that the suspect had forgotten. If the test is used to obtain confessions for crimes, the outcome may be suspect. Suspects of crimes may omit information or give a persistently false version of the incident while under the influence of drugs. 10 As a tool for criminal inquiry, narco-analysis is not suggested.

Way Forward
Due to their lack of scientific verification and reliability, these procedures cannot be utilised as incriminating evidence or confessions. They can, however, be utilised as investigative tools to help solve challenging situations. The government should encourage the use of scientific approaches in otherwise time-consuming investigations and trials, but it should also establish strong guidelines for their proper and consensual application.

Conclusion
Individual liberty and freedom are valued in today's criminal justice system, and in this environment, offenders are unable to prevent safe passage due to flaws in the system that result in dilution of evidence. The likelihood of justice has reduced since the Apex court overturned the legitimacy of the test and admissibility of Narco-analysis, taking into account the conditions under which it was obtained. It is proposed that making the administration of a narco-analysis test mandatory for the accused/witness in serious crimes could open the way for improving the quality of criminal justice by strengthening the evidence system.

This is a bold step. The criminal justice system will be transformed as a result of this action. However, when the accused person demands justice, the validity of the Narco-analysis test is called into question. When all other avenues of investigation fail, the Narco test can be deemed unethical. Every individual is presumed innocent until proven guilty, and every criminal inquiry should follow the same principle.

The narco-analysis exam, brain mapping, and polygraph tests are all quite valuable in the criminal investigative process. Despite the fact that the Indian Evidence Act of 1872 is silent on the use of these procedures, the constitutional courts have addressed the question of whether or not such methods should be used in a number of cases. The question of whether or not these methods should be allowed to be employed in investigations and interrogations is still being disputed by jurists, academics, and ordinary people alike.

In high-profile cases such as the Aarushi Talwar murder case, the Nithari deaths case, the Telgi scandal, and the Mumbai Bomb Blasts case, the narco-analysis approach has proven to be extremely useful and successful. The Constitution, as well as other special and municipal laws, limit the powers of the police authorities and operate as a barrier to their exercise.

Though the Supreme Court clarified when these procedures can be used and when they cannot by its landmark decision in Smt.Selvi, authorities should reconsider their employment of these scientific methods of investigation. The repercussions of the repercussions of the revocation of the revocation. Experts' reports of side effects should not prevent additional research and controlled trials of the medications in question. The standards have the potential to ensure that justice is served fairly and promptly.

When a person lies, a polygraphy exam is used to measure the psychological and physical changes in his body. Even though it detects lies accurately, it breaches laws such as personal liberty and cannot be used as evidence in a court of law. You can't be your own witness, after all. Furthermore, with a little skill, the polygraphy test can be easily fooled. Polygraphy is of no utility if the accused is a skilled liar with high emotional control. Polygraphy results, on the other hand, can be used by the court as evidence. The results can potentially be used by the police to further their investigation into the matter.

References:

1. https://legaldesire.com/evidentiary-value-of-narco-analysis-and-brain-mapping-in-india-vis-a-vis-smt-selvi-ors-v-state-of-karnataka-2010/
2. https://madhavuniversity.edu.in/nacro-analysis-test.html

End-Notes:

1. 1961 AIR 1808, 1962 SCR (3) 10
2. 1978 AIR 1025, 1978 SCR (3) 608
3. 1954 AIR 300, 1954 SCR 1077
4. 1961 AIR 1808, 1962 SCR (3) 10
5. AIR 1955 SC 549, 1955 2 SCR 225
6. Criminal Appeal No. 1267 of 2004