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Critical Study on validity of Narco Analysis with reference to Article 20(3) of the Indian Constitution

CHAPTER-1 INTRODUCTION Since the early ages the man has desired to make out or know the truth of events happening around. In any criminal investigation, interrogation of the suspects and accused plays a vital role in extracting the truth from them. The agencies investigating the accused are of the view that every crimes takes place in a persons mind before they are carried out, so by investigating or studying the mind of an accused with or without consent, would render a great help in the investigation process. With the advancement of science and technology, sophisticated methods of lie detection have been developed which do away with the use of third degree torture by the police. The scientific methods of interrogation namely- The Polygraph test, The Brain Mapping test and The Narco analysis or the Truth Serum test are the main three tests that have recently been developed for extracting confessions. These psychoanalytical tests are also used to interpret the behaviour of the criminal (or the suspect) and corroborate the investigating officers observations. In this way a new jurisprudence is being created which permits of what liberal jurisprudence had found unacceptable, by diluting constitutional protections, replacing conventional investigating tools and procedures associated with them in the name of fighting extraordinary crimes. But we know very well that in India legislations once introduced with promise of being temporary become permanent fixture. Now we are at the peak of seeing Narco-analysis as an investigating tool, where there is a question that its results will be made admissible as evidence or not as Narco analysis raise a host of ethical, legal, and medical issues. Narco analysis was introduced in 1936 for the use of narcotics to induce a trance like state wherein the person is subjected to various queries. The Narco analysis test is based on the principle that a person is able to lie using his imagination and, under the influence of certain barbiturates, this capacity for imagination is blocked or neutralized by leading the person into a semiconscious state. It becomes difficult for the person to lie and his answers would be restricted to facts he is aware of. The use of such drug in police work or interrogation is similar to the accepted psychiatric practice of Narco analysis and the only difference in the two procedures is the difference in the objectives.

1.1 RESEARCH PROBLEM The term Narco-analysis has been derived from the Greek word nark, which means the anesthesia .Narco-analysis means psycho-analysis using drugs to induce a state taking to sleep. Narco-analysis is used as tool for criminal investigation. The accused, witness or suspect is given chemical drugs like sodium pentothal by the police or investigating agencies to make him fall in a hypnotic state so as to make him reveal some information which may be reluctant to reveal while in conscious state. The central nervous system of the body of the subject is depressed by the drug, which puts the subject in a hypnotic state, and it is believed that in such a trance-like situation the individual cannot speak anything but the truth.

In India, the Narco analysis test is carried out by a team comprising of an anaesthesiologist, a psychiatrist, a clinical forensic psychologist, an audio-videographer, and supporting nursing staff. The forensic psychologist will prepare the report about the revelations, which will be accompanied by a compact disc of audio-video recordings. Is the procedure for Narco analysis is violative of the rights against self-incrimination, Guaranteed under Article 20 (3) of Constitution?

Narco analysis has raised several issues of legal importance, for e.g. its admissibility in evidence, encroachment on personal liberty, and test being violative of article 20(3) of constitution of India. It is also termed as psychological third degree method.

Narcoanalysis is criticized on the ground that it is not 100% accurate. It is been found in various cases that certain subjects made totally false statements. It is constantly unsuccessful in bringing out truth as such it should not been used to compare the statement already given to the police before use of drug. It has been found that a person has given false information even after administration of drug. It is not much help in case of evasive & untruthful person. It is very difficult to suggest a correct dose of drug for a particular person. The dose of drug will differ according to will power, mental attitude and physique of the subject. Successful Narco analysis test is dependent on a competent and skilled interviewer who is trained in putting recent and successful questions. 1.2 TITLE: Critical Study on validity of Narco Analysis with reference to Article 20(3) of the Indian Constitution

1.3 AIM: The research aims at determining the constitutionality of Narco analysis test and developing inferences based upon their validity on grounds of violation of Fundamental rights.


To know the constitutionality of Narco Analysis Test To know the evidentiary value of Narco Analysis Test To know the applicability of Narco Analysis Test in India To study the need of Narco Analysis Test in present scenario

1.5 SCOPE: The researcher has limited its scope to validity of NARCO ANALYSIS on grounds of Article 20(3) and 21 of INDIAN CONSTITUTION.


Narco Analysis Test is the infringement of fundamental right of Self incrimination as mentioned in the Article 20(3) of Indian Constitution. Narco Analysis Test is the violation of dignified life. In the era of technology Narco Analysis Test is fruitful in detecting the truth.

1.7 RESEARCH METHODOLOGY Project work is primarily based on doctrinal and analytical research keeping this in view the researcher utilized the resources like print and electronic media ,articles and reports of various authorities, books in the library, internet websites like Google search; discussed the project with teachers, classmates & friends. As the study is legal in nature, historical and doctrinal methods are adopted because it is not possible to study purely by experimental method. From the collected material and information, researcher proposes to critically analyze the topic of the study and try to reach the core aspect of study.


Clause (3) of Article 20 declares that no person accused of an offence shall be compelled to be a witness against himself. This provision may be stated to consist of the following three components:[1] 1. it is a right pertaining to a person accused of an offence 2. It is a protection against compulsion to be a witness; and 3. It is a protection against such compulsion resulting in his giving evidence against himself. For invocation of Article 20(3) of the constitution of India all the three ingredients must coexist.

(1) Right pertaining to a person accused of an offence The person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused any time after the statement has been made. Accusation is ordinarily brought into existence by lodging of an F.I.R. or a formal complaint to the appropriate authority or court against the specific individual, accusing him of the commission of a crime which, in the normal course, would result in his prosecution. It needs however to be affirmed that the protection against what is called testimonial compulsion under Art. 20(3) are against proceedings in Court. The incriminating statements procured during Narco analysis are not used in the court of law. Moreover it is a scientific test conducted by a team of scientists and does not amount to custodial interrogation by Police.

(2) Protection against compulsion to be a witness. Compelling a person to undergo Narco-analysis will amount violation of the constitutional protection given to a citizen under Article 20(3) of the Indian Constitution. If in the process of obtaining information, i.e. collection of evidence during investigation, any legal or fundamental right of the accused is infringed or violated, nothing prevents them from resorting to the safeguards provided to them under various laws. But that cannot be a ground to refuse to answer during investigation.

(3) Protection against such compulsion resulting in his giving evidence against himself. Statement made or information given by an accused will be either exculpatory or inculpatory and it is only inculpatory statement which is hit by Article 20(3) of the Constitution. Whether the accused has made an inculpatory or exculpatory statement will be known only after the test is conducted and not before. So, it becomes premature to say whether the nature of statement or information, which the accused gives under Narco-analysis Test.


Narco Analysis Tests usually do not have any legal soundness as the confession made by a semi-conscious person is not admissible in court of law. The court may, conversely, grant limited admissibility after taking into consideration the circumstances under which the test was carried out. The petitioners in one of the leading cases said courts could not direct the prosecution to hold Narco analysis, brain mapping and lie detector tests against the will of the accused as it will violate Article 20 (3) of the Indian Constitution which is the main provision

on the subject of crime investigation and trial. It deals with the privilege against self incrimination. The privilege against self incrimination is a fundamental standard of Common law criminal jurisprudence. Art. 20(3) which embody this privilege translates as, No person accused of any offence shall be compelled to be a witness against himself. Subjecting the accused to undergo the test, as has been done by the exploratory agencies in India, is considered by many as a blatant violation of Art. 20(3) it was held that to attract of Constitution.

Various fundamental questions pertaining to judicial matters and also human rights have been raised on the application of Narco Analysis Test. The legal point of using this technique as an investigative aid raises genuine issues like encroachment of an individuals rights, Liberties and freedom. The judicial opinion relating to self-incrimination, can best be summarized by the decision of the Bombay High Court in Ramchandra Reddy v. State of Maharashtra[2] wherein the Court considered whether a statement can be forcibly taken from the accused by requiring him to undergo a Narco test against his will. A strict reading of Article 20(3) suggested to the Court that it shall apply if the statement is inculpating or incriminating the person making it, which can only be ascertained after the test, is administered. Thus, the Court held that there was no reason to prevent administration of this test because there were enough protections available under the Indian Evidence Act, Code of Criminal Procedure and under the Constitution to prevent inclusion of any incriminating statement made in the course of the administration of the test.

In case of State Bombay v. Kathikalu[3], it was shown that the accused was constrained to make statement likely to be incriminative of himself. Compulsion means duress (pressure), which includes threatening, beating of wife, parent or child of person. Thus where the accused makes a confession without any inducement, threat or promise art 20(3) does not apply.

The privilege of the person against right to self-incrimination thus enables the maintenance of human privacy and observance of civilized principles in the enforcement of criminal justice. It also goes in opposition to the maxim Nemo Tenetur se Ipsum Accusare i.e., No man, not even the accused himself can be forced to answer any question, which may tend to prove him guilty of a crime, he has been accused of. If any form of physical or moral compulsion (under hypnotic state of mind too) is used to derive confession from the accused, it should be rejected by the court. In CrPC the legislature has protected a persons right against selfincrimination under section. The right against forced self-incrimination, widely known as the Right to Silence is 161(2) which 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. Certain urgings have been made that Narco analysis comprises of mental torture and hence violates

the Right to Life as mentioned in Article 21 as it deals with right to privacy. Again, law against interruption in privacy of individual would not allow brain striking evidence to be given in the court. With the pronouncement of the case Nandini Sathpathy vs P.L.Dani[4] it is very well established that Right to Silence has been granted to the accused. It stated that 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 ones mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence. Nandini Sathpathy 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. The Court upheld her pleas. Moreover, there is a question of reliability of tests like Narco Analysis. Studies done by a number of medical associations in the US stick to the view that truth serums do not persuade truthful statements and accused in such a condition of trance under the truth serum may give misleading or false answers. It was held in the case of Townsend v. Sain[5] (USA) that the petitioners confession was constitutionally inadmissible if it was adduced by the police questioning, during a period when the petitioners will was overborne by a drug having the property of a truth serum. CHAPTER 4: PRESENT INDIAN SCENARIO Narco-analysis in India has witnessed a mixed response from the judiciary, ranging from outright disapproval to reluctant and latent encouragement. For instance, during 2004-20011, various High Courts have been lackadaisical in commenting on the civil liberties' aspects of Narco-analysis while some have decreed it a permissible practice, in conformity with Part III of the Constitution. However, in M.C. Sekharan v. State of Kerala[6], 1980 the Kerala High Court took a sharp approach towards the process, declaring unambiguously that it is against the fundamental human rights of an accused. Thus, the judicial tryst with Narco-analysis in the previous decade had been one of ambivalence or approval. The judiciary possibly viewed this practice to be a solution to match the threat to internal security faced by India during the aforementioned period. The Indian Courts have so far refused to admit the Narco Analysis as evidence, but Narco Analysis is being carried out by the investigators. The reason is that although confession made to the police or in the presence of police is not admissible in Courts, the information is admissible by which an instrument or object used in commission of crime is discovered. There are a several issues raised by media and critics regarding the validity of Narco Analysis as a scientific tool of investigation and its admissibility in court of law. In India, the Narco analysis test is done by a team comprising of an anaesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer, and supporting nursing staff. The forensic psychologist will prepare the report about the revelations, which will be accompanied by a compact disc of 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.

In the recent judgement in the case of Smt. Selvi & Ors. V. State of Karnataka[7] it was observed that the right against self incrimination is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives firstly, that of ensuring the reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. The law confers on any person who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will be inculpatory or exculpatory. [8] Narco Analysis test has played a very important and useful role in handling criminal cases in India. For example in the sensational cases of Mumbai serial train blasts, blasts in Delhi, Malegoan and Hyderabad and in various sensational cases of National and International ramifications. In most of the above mentioned cases, the revelations made by using the Narco analysis test have led to the discovery of incriminating informationss favouring probative truth and consequently recoveries have been made in large number of cases under section 27 of Indian Evidence Act. The judgment of an eleven-judge bench in the case of State of Bombay v Kathi Kalu Oghad[9] where it was observed that It is well established that clause (3) of Article 20 is directed against self-incrimination by the accused person. Self-incrimination must mean conveying information based upon personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in the controversy, but which do not contain any statement of the accused based on his personal knowledge. There is no compulsion when a police officer, in investigating a crime against, a certain individual, asks him to do a certain thing. The fact that a person was in police custody when he made the statement is not a foundation for an inference that he was compelled to make the statement. The mere questioning of an accused by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not compulsion. It has been held in Ram Jawayya Kupars[10] case that executive power cannot intrude on either constitutional rights and liberty of the person , or for that matter any other rights of a person and it has also been observed that in absence of any law an intrusion in fundamental rights must be struck down as unconstitutional. CHAPTER 5: EVEDENCIARY VALUE OF NARCO ANALYSIS TEST The Narco analysis test does not carry any evidentiary value and the Constitution of India (Article 20) is an absolute injunction against any attempt to make a law giving evidentiary value to it[11]. A person is said to have given a free statement when he is in a conscious state. And the value of a statement as an evidence depends on the freeness of the statement. If a statement is made by a person under the influence of any threat, drugs, alcohol or anything that takes of a persons consciousness, then no evidentiary value can be given to such a statement. The Constitution of India is having certain provisions ensuring that no one can compel a person to be a witness against himself, then how can a statement given during the Narco-analysis test be considered as evidence in the constitutional framework of the country. There is no scientific evidence also to show that this is a test where the truth can be got from a person in a really foolproof manner. But some scientific studies have shown that many

times the person undergoing the test gives false statements. According to the section 3 of the Indian Evidence Act, 1872, "Evidence" means and includes (1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) All documents produced for the inspection of the Court; such documents are called documentary evidence. Now the questions is that whether any answer received as a result of Narco analysis test would be evidence within this section or not. Obviously such a statement would not form part of evidence unless it satisfies some other tests. If any statement has been permitted or required by the Court it does not become admissible in evidence. Court may admit or may not admit it. Admissibility would depend upon number of factors. Sections 24 to 30 of the Indian Evidence Act deal with the admissibility of confession by the accused persons in criminal cases. But the expression confession is not defined in the said Act. Shortly stated a confession is a statement made by an accused admitting his guilt. The term statement includes both oral and written statement. In reference to Narco-analysis test it can be said that if the subject orally states or even writes down something then both will amount to confession. But provision of Sections 24 to 27 of the Indian Evidence Act would bar statement from being admissible in evidence because if there is the slightest doubt about coercion or intimidation or any type of fear that the statement was not free or that immediate before such test the subject was harassed by the Police or was coerced then such statement would be meaningless. Section 24[12] of the Indian Evidence Act specially bars such statement. The revelation made during the Narco analysis test have been found most often to be of very useful in solving many sensational cases. In most of these cases, the statements made have led to the discovery of important informations and consequently various recoveries have been made under section 27 of the Indian Evidence Act, in large number of cases. It is clear that the information referred to in Section 27 is admissible because it is voluntary deposition. But if the information has been obtained by the use of compulsion, Article 20(3) will be violated and the information will be inadmissible. SC has recognized that the protective scope of art. 20(3) available to the accused in the investigation stage also in criminal cases and when it is read with section 161(2) of CrPC. then it will protect the accused and witness also who are examined during an investigation[13]. According to section 161 (2) of the Cr. P.C. a person is legally bound to answer every question put to him truthfully during the course of investigation. The greatest virtue of law is its flexibility and thus its applicability should not be rigid but be flexible. Moreover, law is not static but it is dynamic. Hence it should keep changing according to requirement and changes in society, science, technology, and ethics and so on. The legal system should absorb developments and advances that take place in science and others till they are for the welfare of the society and they do not violate fundamental legal principles. Therefore there is a need that the better refined and sophisticated methods replace the third degree methods. Narco analysis test can evolve as viable effective alternative to barbaric third degree methods. If a question which does not have the tendency to incriminate the accused succeeds in extracting a confession or statement from him, the usage of the scientific method cannot be said to violate Art. 20(3) of our Constitution.

This is well settled that the evidence obtained through any compulsion cannot be admitted in evidence. There is a protection given by Article 20(3) to an individual to choose either to speak or remain silent during any course of investigation, it doesnt matter that whether his speak or silence proves to be exculpatory or inculpatory. The provision is aimed to ensure that no personal knowledge of the subject relevant to the facts in issue should be conveyed or revealed by any forcible means. And if we study the Narco-test carefully then we will find that it is in itself a forcible means to make a person reveal his personal knowledge which he may not be willing to disclose, through way of inhibiting his mind. In Selvi v. State of Karnataka[14], the Supreme Court held that the results of the tests by themselves cannot be admitted as evidence, even if the subject has consented to any of these tests, because there is no conscious control being exercised by the subject over the responses during the course of the test. However, if with the help of voluntarily administered test, any material or information is subsequently discovered then it can be admitted under section 27 of the Evidence Act, 1872. Further in the above case it was held that the statements made in custody are considered to be unreliable unless they have been subjected to cross-examination or judicial scrutiny. No person accused of any offence shall be compelled to be a witness against himself[15]. The confessions made before police officers are ordinarily not admissible as evidence and it is only the statements made in the confession was a result of any inducement, promise or threat, where charge against the accused person was having reference. An accused shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. The accused shall not render him liable to punishment by refusing to answer such questions, or by giving false answers to them. The accused shall not be called as a witness except on his own request in writing. His failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial.

CHAPTER 6: CRITICISM OF NARCO ANALYSIS TEST Narco Analysis has been criticised on the grounds that it is not 100% accurate. It has been found that certain subjects made totally false statements. It is often unsuccessful in eliciting truth as such it should not be used to compare the statements already given to the police before the use of truth drug. It has also been found that a person who has given false information before use of the drug is likely to give false information even after administration of drug. It is not much of help in case of malingerers or evasive and untruthful persons. This test has to be done by a highly qualified physician. It cannot be done by ordinary physician. It is very difficult to suggest a correct dose of drug for a particular person. The dose of drug will differ according to the will power, mental attitude and physique of the subject. A wrong dose may bring the subject in coma or in some cases even death may be caused. If the subject has been a drug addict or alcoholic his/her tolerance level will be high and he/she may make fake state of semi-consciousness and can tell lies.

Successful Narco analysis is not dependant on injection. For its success a competent and skilled interviewer is who is trained in putting relevant and useful questions. As such it is possible that a psychiatrist is more capable of eliciting information from suspect than a police officer. On ethical grounds it is criticised that a psychiatrist is not a detective. He/she is for treating mental disorders and should not participate in criminal cases. Narco analysis test is a restoration of memory which the suspect had forgotten. He/she can take plea of insanity and can circumvent justice. Narco analysis test result may be doubtful if the test is used for the purposes of confession of crimes. Suspects of crimes may, under the influence of drugs, deliberately withhold information or may give untrue account of incident persistently. Narco analysis is not recommended as an aid to criminal investigation. In medical uses like in treatment of psychiatric disorders the Narco analysis may be useful. Unless the test is conducted with the consent of the suspect it should not be used in criminal investigations.

CHAPTER 7: CONCLUSION & SUGGESTIONS 7.1 CONCLUSION It is now an established fact that the practice of Narco analysis in any form is unconstitutional. But surprisingly it is still being practiced in India without any barrier. And more ridiculously the highest judiciary of India also views that the Narco analysis test can be carried on with the consent of the accused or witness. Can it be ever imagined that any accused would give his consent to such a test freely if he is fully aware of the side effects of test over his body and mind. How can we expect from a person to give his assent to the Narco test being fully aware of the side effects of the test. Even if it is assumed that the accused has given his free informative consent, then also the question arises that whether a person can waive his fundamental rights provided under the Article 20 and 21. The conclusion is that this evil of Narco analysis test is being practiced in India just because of a mutual understanding between the judiciary, police, investigative agencies, human rights activists, etc. Only strong public opinion in support of human rights will be able to influence judicial decisions, and so also the decisions and practices of various professions. A sustained campaign should be taken up by the people of India, in the movement for democratic rights, against the use of invasive methods like Narco analysis. It is high time that we blend this test with Article 20(3) in such a manner that no questions are raised as to its constitutional validity. For this purpose, it is essential that the Union Government should come out with certain guidelines which are to be strictly followed while conduction such a test.

7.2 SUGGESTIONS After going through various issues related to the constitutionality of Narco analysis in the light of the laws and human rights, the researcher has reached to bring forth some of the suggestions.

1. Government should train the investigating agencies in a better way so that they can enhance their investigating skills and resort to constitutional measures of investigation, rather than to resort to unconstitutional and inhuman measures like Narco analysis. 2. Intelligence systems must be made more sound and efficient. 3. Scientific technique of investigation should not be permitted to the extent they are violative of human rights and constitute torture. 4. Other scientific technique such as DNA profiling or DNA sampling should be used, and further improvement in these techniques must be made so as to suffice the investigation. 5. Rules laid down by the National Human Rights Commission (NHRC) must be strictly followed while using any scientific technique in Narco-analysis. BIBLOGRAPHY

Books Referred:

Narcoanalysis, by Keichi chikushi and Yashpal Singh The Constitutional Law of India, J.N. Pandey, 47th Ed. Indian Constitutional Law, Prof. M.P Jain, 2008, 5th Ed.

Articles Referred:


Cases Referred:

Selvi & Ors. V. State Of Karnataka & Anr M.P. Sharma v. Satish Chandra AIR 1954 SC 300 State of Bombay V. Kathi Kalu Oghad AIR 1961 SC 1808 Nandini Sathapathi V. P.L Dani AIR 1978 SC 1025 R v. Purnell (1748) 1 Wm Bl 37

Websites Referred visited 24 July, 2011 24 July, 2011 last visited 22 July, 2011

[1] Article 20(3) of the Constitution of India [2] 2004 All MR (Cri) 1704 [3] AIR 1961 Cri LJ , Vol 2, 2007 [4] AIR 1978 SC 1025 [5] 372 US 293 (1963)

[6] 1980 CriLJ 31 [7] AIR 2010 SC 340 [8] (hhtp:// [9] AIR 1961 SC 1808 [10] 1955(2)SCR225


[12] Section 24 of the Indian Evidence Act, 1872-Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.-A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. [13] Selvi and others v. State of Karnataka AIR 2010 SC 340 [14] AIR 2010 SC 340 [15] Article 20(3) of the Constitution of India