Constitutional Law- I

Constitutional Validity of Narco Analysis.

Submitted by: Monica Varaganti

B.A.,LL.B (hons)
III Year
Roll no: 71

Submitted to: Prof. Anshuman Shukla.

Introduction:
Interrogation of the criminal or accused to extract truth from them forms an important part in the criminal
investigation. The common method is the third degree torture, used by the police since time immemorial.
As there was advancement of technology, many sophisticated methods of lie detection were developed that
do away with the concept of third degree torture. The Lie Detector or the Polygraph test, The Brain
Mapping test, and the Narcoanalysis or the Truth Serum test are three scientific tools that have been
developed over the years for extracting the truth or confessions from the accused. These are
psychoanalytical tests that detect the behavior of the criminals of the accused. They have important
scientific, ethical, clinical and legal implications1. They are obviously used to know the concealed or hidden
information, which is sometimes only known to self2. Many a times legal questions have been raised about
the constitutional validity of the tests like Narco Analysis. Some do uphold its validity in the light of certain
legal principles but others claim it to be a complete violation of fundamental constitutional provisions. The
allegation made against Narco Analysis is that it is blatantly violating Article 20 (3) of the Indian
Constitution. But with the ever increasing crime rates, is it not necessary to implement such tests? as they
offer a lot of help to the investigating agencies. Whether such type of tests are a boon or bane will be
analyzed further in this paper.
What is Narco Analysis?
The term Narco Analysis is derived from a Greek word. The word Nark means anesthesia. This term was
coined by Horseley. Narco Analysis or Truth serum/drug test can be described as a diagnostic and a psychotherapeutic technique, that involves in using psychotropic drugs, specially barbiturate drugs 3 in which the
mental elements come to surface, where they can be exploited by a therapist. This therapy first came into
main picture in the year 1922, where a obstetrician named Robert House, used the drug scopolamine on two
of the prisoners in Texas.
How is the test conducted:

1 Wolpe PR, Foster KR, Langleben DD. Emerging neuro-technologies for lie detection: Promises and perils, Am J
Bioeth 2005, 5: 39-49.
2 Nose I, Murai J, Taira M. Disclosing concealed information on the basis of cortical activations . Nueroimage 2009,
44: 1380-6.
3 http://dictionary.reference.com/browse/narco+analysis.

This test is conducted by mixing 3 grams of Sodium Amytal or Sodium Pentothal dissolved in 3000 ml of
distilled water and this is injected to the person to lower a subjects inhibitions so that he can freely share
information and feelings. The inhibitions of the person are lowered as the drug interferes with the nervous
system at the molecular level. As it becomes difficult for a person to use his imagination after the
administration of the drug, it becomes difficult for him to lie. The person is put in a state of hypnotism
where he cannot speak on his own but can answer certain specific questions asked with the help of certain
suggestions. In such a state, efforts are made to obtain the possible truth of the crime. These answers are
taken to be spontaneous as he is in a semi-conscious state and it is difficult for him to manipulate answers.
Further those revelations made by the person are verified by subjecting the person to polygraph or brain
mapping tests. Those particular revelations made by the person are recorded in audio as well as video. This
test is conducted in the presence of medical experts.
Narco Analysis test is illegal in most of the western democracies although it was claimed that it should be
used on suspected terrorists4. This is mainstreamed into investigations as well as court hearings in India. It
is not openly permitted in most of the democratic countries. In high profile cases like the Nithari killers,
The Mumbai train blasts5 etc, the courts have granted permission to conduct the test of Narco-Analysis6.
The first Narco Analysis test was conducted on an individual connected with the offences of Veerappan, in
Forensic Science Laboratory (FSL), Bangalore, where lie detection tests have been conducted since 1999 7.
It was also used in the year 2002, in the Godhra Carnage Case.
The main accusation made against the use of Narco Analysis is that it is used as a substitute by police
instead of a proper investigation and it violates Article 20(3) of the constitution. Its legality is challenged on
the basis of it being inhuman and degrading method to make a person confess his crime. Because in a
civilized world it is completely unacceptable of the police to use third degree torture to extract the truth.
Narco Analysis v. Police Investigation:

4 Posner, Why America Slept: The failure to prevent 9/11, 187-188.

5 The Law of Evidence, Ratanlal and Dhirajlal, 23rd edition.
6 http://in.rediff.com/news/2007/jan/01noida1.htm,
7 Misconceptions of Narco Analysis, pg 7-8.

Generally, psychiatrists induce certain hypnotic drugs to the patients suffering from neurotic illness, who
are not able to express their situations through words. Under the narcotic condition the person is in a semi
conscious state and is able to express himself or herself freely. This helps to gain deep insight into the
problem. This is rather an easy way for the physician to diagnose the illness or the problem.
The general belief of the Indian police is that Narco analysis is the best scientific tool for interrogation as it
helps in getting clinching evidence against the accused himself. Accordingly it would also help in finding
out the motive of the accused and other important evidence that would help in the prosecution. This
investigative technique is used as an alternative to physical torture. But it does raise serious questions on
about the rights and liberties of the individual.
Even though both the procedures are the same, that is inducement of truth drugs to extract the truth, its
objectives are completely different. The psychiatrist uses it to diagnose the illness of the patient, and to help
him lead a better life. Whereas the police is only concerned with the empirical truth revealed by the accused
and they are only concerned with the statements that can be used as evidence against the person8.
Criticisms of Narco Analysis:
The main criticism leveled against this test is that it is not 100 percent accurate. It has been found that the
accused sometimes give false statements. It also goes against the maxim, Nemo Tenetur se Ipsum
Accusare, which means: No man including the accused himself can be compelled to answer any question
that may prove him guilty of a crime he has been accused of. This statement giving in a state of semiconsciousness should not be compared with the statements that have already given to the police, before the
inducement of the drug. And moreover it is really difficult to suggest what quantity of drug is accurate for a
person. The latter effect of the drugs depends on the will power and mental attitude of the person. The
result of the test may also be doubtful because the accused may deliberately try to with hold the
information relating to the crime as mental state of the person cannot always be predicted and he may give
untrue account of the incident9. Concerns regarding this were also raised by the National Human Rights
Commission, and they had published certain guidelines for the administration of polygraph tests in the year
200010.

8 Scientific Evidence for police officers; Scientific tests and experiments; Specific Methods of proof, Author:
Richardson. Pg 146-149,
9 J.M. MacDonald, Narco Analysis and Criminal Law, 1954 Edition.

Constitutional Validity of Narco Analysis:

Article 20(3) of the constitution says: No person accused shall be compelled to be a witness against
himself. This contains three important components;
1. It is a right given to the person accused.
2. It is used as a protection against compulsion to be a witness
3. It can be used against the compulsion resulting in the witness giving self incriminating evidence.
Also, Article 21 of the Indian constitution guarantees right to life and personal liberty.
This privilege given in Article 20(3) is confined only to an accused person. A person against whom an FIR
has been filed and an investigation order has been passed can have a claim to this protection. All the
requirements mentioned above must be met to invoke this Article. If any of the requirements is missing
then Article 20 (3) cannot be invoked. But this article does not apply at all if the accused has made a
confession without any threat or inducement11.
This basic privilege of right against self -incrimination, enables the observance of certain civilized
standards during the enforcement of the criminal justice as well as maintenance of human privacy. The
right against self incrimination is widely known as the Right to Silence 12, in the Code of Criminal
procedure. This has also been upheld in the pronouncement of Nandini Sathpathy v. P.L.Dani 13. Nobody
can forcibly extract the statements from the accused and he has the right to keep silence during the
investigation. And if such tests are administered then it is forcible intrusion into ones mind and therefore
this nullifies the legitimacy of Right to Silence.
In Ram Jawayya Kupars case14, it was held that the executive power has no right to intrude into any rights
of a person and an intrusion into fundamental rights can be struck down as unconstitutional.
10 National Human Rights Commission Guidelines. Available at: http://nhrc.nic.in/Documents/sec-3.pdf.
11 Kalawati v. H.P. State. State of Andhra Pradesh v. Inapuri Padma.
12 Section 161(2) : Every person is bound to answer truthfully all questions put to him by the police officer other
than questions the answer to which would have a tendency to expose that person to a criminal charge, penalty or
forfeiture.
13 AIR 1978 SC 1025.
14 1955(2)SCR225.

In the view of all this, these are the particular views that have been taken by different courts at different
points of time whether Narco- Analysis is constitutionally valid or not.
As the narco- analysis test makes the individual go in a semi conscious state, and the inducement of the
particular drugs interferes with the functioning of the nervous system, and thus the person has no control
over himself. This according to some people leads to playing with the mind as well as life of the person.
Here comes the question of right and liberty, human rights as well as the privilege of right against self
incrimination of such person.
The apex court in the past years has given variable opinion on this issue. It was in the year 2004 that this
issue cropped up in the Bombay High Court and was being discussed. The main issue that was discussed in
the case of Ramachandra Reddy v. State of Maharashtra 15, was whether he use of scientific technology like
the brain mapping test and the lie detector test is violation of Article 20 (3). The Bombay High Court made
a technical distinction between a statement and testimony and opined that What is required by the
person to be made under compulsion is a statement. And if a person is made to undergo certain tests and is
targeted with certain specific questions about the certain knowledge that he possesses relating to the crime.
No way can this be called a statement. It is nothing but certain information taken out of the witness. But it
cannot be said to be self incrimination and does not violate article 20 (3) of the Indian Constitution16
In the cases of Rojo George v. Deputy Superintendent of Police 17 and Santokben Sharmabhai Jadeja v. State
of Gujarat18 the court held that, As the criminals are using modern techniques for committing crime, the
conventional methods for investigation will not be sufficient for solution and hence new techniques such as
brain mapping, polygraph and narco-analysis needs to be utilized. And when such techniques are used in
the presence of experts the question of investigating agencies violating human rights or fundamental rights
cannot be raised. And when all possible methods of investigation are exhausted and there is no other way to
find out the truth or to nab the criminal then usage of tests becomes necessary. And on the basis of the
revelation made by the accused, it is possible for the police to further investigate. And it is also absolutely
necessary to use such tests as it is the duty of every person to cooperate with the state and it is each and
15 MANU/MH.0067/2007.
16 Ramchandra Ram Reddy v. State of Maharashtra. MANU/MH.0067/2007.
17 AIR 1953 SC 131.
18 2008 Cr.L.J. 3992.

every persons social responsibility and it is not fair one the persons part to withhold any criminal
information. This social responsibility cannot be avoided in the name of right to privacy as it is not an
absolute right19.
If a person has some valuable information and he is not willing to divulge such information at any cost,
which is required for the investigation purposes then adverse impression can be taken against them and
Article 20 (3) has no right to stop it20.
In the landmark judgment of Dinesh Dalmia v State 21, it was held that subjecting an accused to narcoanalysis and other scientific methods of investigation does not amount to testimony by compulsion. If the
accused fails to cooperate with the investigating officer, then scientific investigation may have to be carried
out to unravel the truth. Narco- Analysis test is a step in aid of investigation22
People who are in support of Narco Analysis claim that it is useful in extracting information from terrorists.
And that Narco Analysis can be emerged as an alternative to the third degree methods used by the police. In
fact such tests were very useful in solving sensational cases like the Malegaon blasts, the Mumbai serial
train blasts etc. Care should however be taken as to this procedure not being misused by the police or any
investigating officer.
But Selvi v. State of Karnataka23 is the most trend setting judgment of its time. It rendered the practice of
brain-mapping, polygraph and narco analysis tests to be void and unconstitutional. Even though these tests
seem to be a boon given by the modern medical science, there are certain standards set by the constitution
and any violation of such standard could be easily held to be unconstitutional. It also laid down certain
guidelines for conducting such tests which are summed up below:
1. Only on the consent of the accused shall such tests be administered to him.

19 Dharampal v State, MANU/SC/0260/2003.

20 Gujarat v. Anirudh Singh, MANU/SC/0749/1997.
21 Crl July 2006, page 2041.
22 Shailender Sharma v. State.
23 Criminal Appeal 1267 of ; 2004 2010(7) SCC 263.

2. If he consents to it then he should be given access to a lawyer who should explain to him the
physical and the legal implications, if he is willing to undergo the test.
3. The consent should be recorded before a judicial magistrate and there too he should be accompanied
by his lawyer.
4. And the person admitting anything before the magistrate will not have the value of a confession
but rather it would be treated as a statement made to a police.
5. The person/accused shall undergo the test in an independent agency like the hospital and he shold e
accompanied by a lawyer.
The Advantages and the Disadvantages of Narco- Analysis:
Having looked at the concept of Narco Analysis and its constitutional validity in detail, its important to
know the pros and cons of such tests in the Indian criminal justice system. After looking at many judicial
pronouncements, it is clear that the courts in many instances are not very particular or clear or they do not
have an affirmative view on the same. The following advantages can be enumerated.

By looking at the crime rate and the number of persons affected, Narco analysis is a boon to the
investigation agencies to be able to discover the truth when there is absolute darkness and not even

a single clue is available to discover evidence.

It is undoubtedly better than the third degree torture used by the investigating/police officers.
And the questions are framed by a panel of experts and there are very less chances that a person

might lie during such process.

The evidence extracted through such process can be denied as non reliable but there are many other

ways it can be used for like it can be used as an admissible evidence or corroborative evidence.
This method can be used to solve the most complex cases.

Disadvantages:

The harmfulness of the chemical administered during the process of Narco Analysis, depends on the
physic as well as the mental condition of the person. Any wrong dose can be harmful and

threatening to the life of the person.

The process will not be very successful if the person is already a drug addict.
One of the common principles of the criminal justice system is that the person whos giving any
information should be well and fir. And the person undergoing such tests is in a semi- conscious

state. This is totally against the principle.

Reliability of such information is also under question as the person is semi- conscious while giving
such information.

Conclusion:
As the society is rapidly changing, the crime patterns are also rapidly changing. It is very difficult to
investigate a professional trained criminal using a traditional method of investigation. The capability and
the sophistication level of the criminal justice system in India should be changed by including new
scientific methods. The investigating agencies need to update their process of investigation as it has now
become an absolute necessity. The public safety is always at risk. This is the major reason why the apex
courts in India have not totally denied the use of such tests. Overall the Indian judiciary has consented to
the partial or conditional use of such tests for extracting the maximum truth out of an accused or a
Criminal. Amendments can be made to certain laws and such scientific methods of investigation can
become a regular part of the investigation scenario. Thereby it can be utilized for the benefit of the society
as well as the mankind and therefore it would be possible to have a crime free society.