Narco Analysis: An Uncivilized Experiment with Fundamental Rights

8/7/2019 Narco Analysis: An Uncivilized Experiment with Fundamental Rights

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AMITY LAW SCHOOL

Narco-Analysis

An Uncivilized Experiment with FundamentalRights

Prateek Mishra, B.A. LL.B (Hons) 6th Semester

A view of Narco Analysis in contrast to Fundamental Rights enshrined in the Constitution of India


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INDEX


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ACK NOWLEDGEMENT

Constitutional Law is the greatest gift ever given to the Indian republic. The most detailed

document in the world contains fine aspects, which regulate and make the life of the

people, worthwhile. The constitution, to cover every bit of the life of people and the countryand, to gain the desired result, inevitably became bulky and intricate.

Prof. SK Gaur, made the intricate concepts relating to the Constitution and the

Constitutional law crystal clear to me, blowing away the clouds of ambiguity. This in true

sense, enabled me to appreciate the concept of Narco Analysis and its antagonistic

relationship to the fundamental rights ensured by the constitution.

I thank Sir, for enabling me in successfully concluding the project.

Prateek Mishra

B.A ., LL.B (Hons.)


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INTRODU C TION

It is far pleasanter to sit comfortably in the shade rubbing red pepper in a poor devil s eye

than to go about in the sun hunting up evidence.

The most laborious part of Criminal investigation is definitely extracting information from

an uncooperative source and thus investigators were always delighted by effective aids to

interrogation. This quest for alternative methods for painstaking and time consuming

interrogative modules have at times succumbed to physical coercion and also police

excesses. However creative minds around the world engineered new scientific tools of interrogation like the Narcoanalysis which is remarkable development in scientific

investigation.

Now in India, Narcoanalysis is being mainstreamed into criminal investigations and has

also passed under the judicial scanner. The application of such tests has become

increasingly, perhaps alarmingly, common in India. But aren t we bit hasting in arriving

conclusions? Do we need a rethought on seemingly remorseless application of this so called

sinister discovery ? Ultimately are we letting our precious human dignity to be prejudiced

in laboratory?


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WH A T IS N A RC O A NA LYSIS

Etymologically 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

which mental elements with strong associated affects come to the surface, where they can

be exploited by the therapist. Though Horseley is widely acclaimed to have coined the term

narco-analysis, the term was popularised in 1922, when Robert House, a Texas obstetrician

used the drug scopolamine on two prisoners. Other terms have also been used, such as

narco-synthesis, chemical psychoanalysis and psychosomatic narco-analysis.

The test is conducted administering barbiturates most often Sodium Pentothal, to lower a

subject s inhibitions and the information is extracted from the subject. In such a semi

conscious state the subject is said to become incapable. Then efforts are made to obtain

information about the crime. The answers are believed to be spontaneous, as a semi-

conscious person is unable to manipulate the answers.


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NA RC O A NA LYSIS FROM C ONSTITUTIPON A L STA NDPOINT

Narco Analysis stands in strict violation of the Constitutional mandate of Fundamental

Rights, which are the most essential and thus, inalienable rights guaranteed via the

Constitution. Following is the section which uncovers the story of how this arbitrary test

violates essential fundamental rights in broad daylight.

Violation of A rticle 21-

Narco analysis is conducted by arbitrary injection of narcotic substances and subsequently

the subject is compelled to answer the questions posed to him. It is a complicated

procedure which has multiple adverse reactions as well as drastic side effect and may even

cause even death of the subject. It is also stated by the learned authors that Laryngospasm

may occur after parenteral barbiturate administration. The ability to maintain an airway is

essential when ever parenteral barbiturates are used. In some cases barbiturates use is

associated with development of exfoliative dermatitis or Stevens-Johnson syndrome. At the

least the so called non- invasive procedure involves subjugation of person to unwanted

narcotic substances.

In State of Punjab v. Mahinder Singh Chawla 1 the Apex Court has held that the right to life

includes right to health. Subjecting a person to an unsafe scientific test as part of

investigation will amount to denial of right to health.

Subjecting someone to this test and the procedure and side effects consequently thereafter,

stands in complete abrogation of Right to Life , which is the most essential right and the

strongest angle of the golden triangle of the Indian Constitution.

1 AIR 1997 SC 1225


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Right to Privacy-

The term Right to Privacy is generic term encompassing various rights recognized to be

inherent concept or ordered liberty. The right to be left alone on right of a person to be free

from unwarranted publicity is Right to Privacy. This Right to Privacy is implicit in the right to life and liberty guaranteed to the citizens of India by article 21 of the constitution of

India. None can publish anything covering the above matters without his consent whether

truthful or otherwise and whether laudatory or critical. If done so, it will be violating right

to privacy of person concerned and would be liable in an action for damages.


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Right A gainst Self Incrimination; A rticle 20(3)-

Time and again this Drugged legal process to be legitimate, should be put under rigorous

constitutionality tests and with extra caution. It s high time to analyse the constitutional

imperatives in the light of Mystery and chemistry of Narcoanalysis. These tests are blatant violation of right against self incrimination enunciated in Article 20 (3) which says-

No person accused of any offence shall be compelled to be a witness against himself .

The privilege against self-incrimination thus enables the maintenance of human privacy

and observance of civilized standards in the enforcement of criminal justice. It also goes

against the maxim N emo Tenetur se Ipsum Accusare t hat is, No man, not even the

accused himself can be compelled to answer any question, which may tend to prove himguilty of a crime, he has been accused of.

In US constitution this right is recognised in Fifth Amendment. According Article 14 (3) (g)

of the International Covenant on Civil and Political Rights(ICCPR)1966, in the

determination of any criminal charge against him, everyone shall be entitled to the

minimum guarantee, in full equality, not to be compelled to testify against himself or to

confess guilt.

As early as in 1954 the Supreme Court in Sharma v Satish 2 held that if formal accusation

has been made against the person, he can claim immunity from being compelled to make a

self incriminating statement.

In another landmark decision, N andani Satpathy v. PL Dani 3 the Supreme Court of India

has widened the Scope of the Article 20 (3) to include R ight to Silence . She claimed that

she had a right of silence by virtue of Article 20(3) of the Constitution and Section 161 (2)

of Cr. P.C. By the administration of these tests, forcible intrusion into one s mind is being

2 AIR 1954 SC 300 3 AIR 1978 SC 1025


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resorted to, thereby nullifying the validity and legitimacy of the Right to Silence. The Apex

Court upheld her pleas.

The Court further held that the phrase compelled testimony must be read as evidence

procured not merely by physical threats or violence but by psychic mental torture,

atmospheric pressure, environmental coercion, tiring interrogatives, proximity,

overbearing and intimidatory methods and like. Since the narco examination does involve

forceful intrusion in to the subject s mind, it undeniably comes under the prohibitive scope

of the Article.

How ever the Indian Courts seems to be limited the scope of Article 20 (3) in the basis of

Minimal Bodily Harm Doctrine . This approach is reflected in the Bombay High Courts

verdict in R amchandra R eddy and Ors. v. State of Maharashtra 4 , which upheld the

legality of the use of P300 or Brain finger-printing, lie-detector test and the use of truth

serum or narcoanalysis. According to Palshikar J. and Kakade J. these tests only involve

minimal bodily harm .

4 Cr. W P(c) No. 1924 of 2003


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Violation of A rticle 14-

Akin this test of transgression seemingly violates right to Equality as enshrined in Article

14 of Constitution.

According to Bhagwati J. in E P R oyappa v State of Tamil N adu 5 -

Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed,

cabined and confined within traditional and doctrinal limits. From a positivistic point of view,

equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies,

one belong to rule of law in a republic and while other, to the whim and caprice of absolute

monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to the

political logic and constitutional law and there for violative of Art 14 .

Thus subjecting a suspect to arbitrary drug injection technique is infringement of Article

14. Since the procedure prescribed by law has to be fair, just and reasonable, it shall not be

fanciful, oppressive and arbitrary, a procedure to be just and fair must embody the

principles of natural justice 6

5 AIR 1974 SC 5556 Maneka Gandhi v Union of India (AIR 1978 SC 597)


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NO TO N A RCO A NA LYSIS ST A MPED: THE SELVY CA SE

In a major setback to investigating agencies, the Supreme Court (SC) on Wednesday ruled

compulsory brain mapping, narco-analysis and lie detector tests unconstitutional as they

violate individual rights.

The Bench of chief KG Balakrishnan, CJ. and RV Raveendran and JM Panchal, JJ. Said-

We hold that no individual should be forcibly subjected to any of the techniques in

question, whether in the context of investigation in criminal cases or otherwise. Doing so

would amount to an unwarranted intrusion into personal liberty.

Disposing of petitions filed by accused in Maharashtra, Karnataka and Andhra Pradesh, the

bench said the tests can be administered to a person only with consent and even then

National Human Rights Commission guidelines must be adhered to. The person needs to be

assisted by a lawyer, his consent needs to be recorded before a magistrate, and he needs to

be told about the implications of his consent and the fact that the information thus

collected would not be used against him as evidence in court. But information or material

collected with the help of a (voluntary) test can be admitted in court under section 27 of

the Evidence Act.


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C ONC LUSION

Let s stop professing this U ltravires discovery, stop scientific denial of precious human

rights . The wrong process will never earn right results. In every reasonable sense, the

Narco analysis is an unconstitutional and unscientific test, no matter its huge acceptance in

the conviction market . Fundamental rights are not something to be experiment in

laboratory, no matter what ever safeguards attached to it. It is to be noted that nations

around the globe have deviated from this prohibitive path 7. Yet we are pursuing it, as

though it is the greatest scientific discovery of the millennium.

7 USA was the first to Prohibit Narco test in Criminal investigation

Narco Analysis: An Uncivilized Experiment with Fundamental Rights

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