AMITY LAW SCHOOL

Narco-Analysis
An Uncivilized Experiment with Fundamental
Rights

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
 INDEX

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 ACKNOWLEDGEMENT

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 country
and, 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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 INTRODUCTION

 
“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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 WHAT IS NARCO ANALYSIS

Etymologically the term narco-analysis is derived from the Greek word narkē 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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 NARCO ANALYSIS FROM CONSTITUTIPONAL STANDPOINT

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 Article 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 Chawla1 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 Against Self Incrimination; Article 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 Nemo Tenetur se Ipsum Accusare that is, ‘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.’

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 Satish2  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, Nandani Satpathy v. PL Dani3 the Supreme Court of India

has widened the Scope of the Article 20 (3) to include “Right 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
resorted to, thereby nullifying the validity and legitimacy of the Right to Silence. The Apex
Court upheld her pleas. 
2
AIR 1954 SC 300
3
AIR 1978 SC 1025

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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 Ramchandra Reddy and Ors. v. State of Maharashtra4, 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”.

Violation of Article 14-

4
Cr. WP(c) No. 1924 of 2003

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Akin this ‘test of transgression’ seemingly violates right to Equality as enshrined in Article
14 of Constitution. 

According to Bhagwati J. in EP Royappa v State of Tamil Nadu5 -

“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 555
6
Maneka Gandhi v Union of India (AIR 1978 SC 597)

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 NO TO NARCO ANALYSIS STAMPED: THE SELVY CASE

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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 CONCLUSION

Let’s stop professing this Ultravires 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 path7. 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

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