The Narco-Analysis has become an increasingly, perhaps alarmingly,
common term in India. This technique has garnered support from certain State
Governments as well as the Judiciary in India. There has been a debate for
quite a long time whether this can be considered as a scientific and reliable
method. An attempt has been made here to critically discuss this technique and
to evaluate its admissibility as evidence in the courts.
Introduction
- The
search for effective aids to interrogation is probably as old as man’s
need to obtain information from an uncooperative accused (or subject) and
as persistent as his impatience to short cut any tortuous path.
- In
the annals of police investigation, physical coercion has, at times, been
substituted for painstaking and time-consuming inquiry in the belief that
direct methods produce quick results.
- But,
hardened and manipulative perpetrators often fail the interrogation thus,
information and admissible evidences are hard to come by.
- With
the advancement of our knowledge or the reapplication of existing
knowledge in a newer specific area has resulted in the emergence of
techniques, such as Polygraphy, Brain-mapping and Narco-analysis.
- The
term ‘Narco-analysis’ is derived from the Greek word ‘Narkë’ (meaning
“anesthesia or torpor”, and is used to describe a diagnostic and
psychotherapeutic technique that uses psychoactive drugs, particularly
barbiturates, to induce a state of stupor in which mental elements with
strong associated effects come to surface, where they can be exploited by
the therapist (or investigating agency).
- The
term ‘Narco-analysis’ was coined by Horseley, but the Narco-analysis first
reached the mainstream in 1922, when Robert House, a Texas Obstetrician
used the drug scopolamine on two prisoners.
- But,
the therapeutic use was first documented by Dr. William Blackwenn (1930).1
Others 2,3,4 demonstrated the usefulness of such drug in procuring
diagnostically or therapeutically vital information, and to provide
patients with a functional respite from catatonia or mania.
Active
Chemical Substances
- Sedative
and hypnotics that alter higher cognitive function by depressing the
Central nervous system include ethanol, scopolamine, quinnuclidinyl
benzilate, temazepam and various barbiturates, such as sodium thiopental
(commonly known as sodium pentothal), Sodium amytal (amobarbital), seconal
are particularly worth mentioning.
- Scopolamine
(an alkaloid of atropine group and is scopine tropate) was the first
chemical substance, but nowadays, the barbiturates, particularly the
sodium pentothal, is the drug of choice for the Narco-analysis.
The
Procedure
- The
Narco-analysis is conducted by the administration of a hypnotic-sedative,
such as sodium pentothal, intravenously into the subject.
- The
dose is calculated as per kg. of the body weight of the subject and the
drug is pushed by an Anesthetist (a medical doctor) at the rate of 4ml/min
(100mg/min) of a 2.5% solution of sodium pentothal.
- The
injection may be preceded by the administration of an cholinergic agent
and a test dose of the said drug.
- The
dose is dependent on the person’s sex, age, health, physical condition,
tolerance and idiosyncrasy.
- The
rate of administration is controlled to drive the subject (accused) slowly
into a hypnotic trance resulting in a lack of inhibition.
- The
subject is then interrogated by the Psychiatrist/Forensic Psychologist in
conjunction with investigating agency.
- The
anesthesia doctor monitors and maintains the hypnotic trance condition of
the subject.
- The
revelation made during this stage are recorded, both in video and audio
cassettes.
- The
Forensic Psychologist prepares the report about the revelations, which
will be accompanied by the audio-video recordings.
- The
strength of the revelations, if necessary, is further verified by
subjecting the person to psychological/criminal profiling, polygraphy
and/or the Brain-mapping tests.
- The Narco-analysis is normally conducted in Government Hospitals or in Forensic Lab where such facilities are created.
- However,
personal consent of the subject and a court order are required for the
conduct of the test.
- In
Narco-analysis test, the person’s inhibitions are lowered by the
depressing action of the drug at the CNS.
- In
such sleep-like state (or hypnotic trance), it becomes difficult, though
not impossible, for him to lie or manipulate the answers.
- Revelations
made by the person under such condition are usually further corroborated
by the investigating agencies, and reconstruction of the crime is done.
Discussion
- Narco-analysis
has become an increasingly, perhaps alarmingly, common term in
India.
- This
practice has also garnered support from certain State Governments as well
as the Judiciary.
- While
expert studies and court opinions available internationally have granted
that there may be some use in Narco-analysis, but the overwhelming
evidence is that it is by no means a reliable science.
There are two main issues in the acceptance of Narco-analysis test
in the Criminal Justice Administration:
1.Whether Narco-analysis is a
reliable scientific test?
2. What should be its legal
status?
Reliability ???
- A
scientific test is one which is based on a solid scientific principle and
always give results, which are precise & accurate, reproducible and
cross verifiable.
- Narco-analysis
basically is a test in the domain of psychology to provide functional
respite from some psychological disorders.
- There
is no direct proven relationship between the administration of so-called
truth drugs and revelation of truth.
- The
CIA has admitted that the actual content of what comes out during the
Narco-analytic interrogation can be psychotic manifestation…hallucinations,
illusion, delusions or disorientation.
- Psychiatrists
hold that some 50% of all individuals are suggestible even while fully
conscious, meaning they can be made to believe events that never actually
happened.
- Thus,
under the effect of drug, the patient may say things that he wished were
true and not that were necessarily true.
- Further,
the effect of the drug should remain same on all subjects, but it varies
with the age, sex, health and general conditions of the person thus
may give different outcome.
- In
the US, where science often interfaces uncomfortably with the law, the
Supreme Court offered four criteria, part of the Daubert standards (1993),
by which to judge the credibility of a scientific principle held by a
minority of practitioners: hypothesis testing; peer review and
publication; knowledge of error rates; and acceptability in the
general scientific community.
- In
India, the Narco-analysis is being mainly done at Forensic Labs at
Bangalore and Gandhinagar.
- As
per one conservative estimate, both laboratories collectively had carried
out the Narco-analysis of around 600 persons by now, but the results of
these tests and their parameters were never peer reviewed and the data never
published in international research journals for the scientific
scrutiny.
- Further,
no controlled studies of sufficiently large relevant samples of criminals
are available; no authentic data and no statistical probability data are
available.
- In
the absence of above, how Narco-analysis can be regarded as a scientific
and reliable technique?
- American
Journal of Psychiatry prohibited the use of Narco-analysis for the purpose
of police investigation (111,283-88).
Legal
Status
- Regarding
the legal status of Narco-analysis, one needs to interpret carefully the
Article 20(3) of the Indian Constitution and Section 161(2) of the
Criminal Procedure Code, 1973.
- The
application of Narco-analysis test involves the fundamental question
pertaining to the judicial matters and also Human Rights.
- The
legal position of applying this technique as an investigative technique
raises genuine issues like encroachment of an individual’s rights,
liberties and freedom.
- Subjecting
the accused to undergo the test as has been done by the investigative
agencies in India, is considered by many as a blatant violation of Article
20(3) of the Constitution.
- It
also goes against the “Maxim Nemo Tenetur Se Ipsum Accusare”, i.e. “No
person accused of any offence shall be compelled to be a witness against
himself.”
- Thus,
Article 20(3) gives privilege to the accused or any person against
self-incrimination which, in fact, is a fundamental basis of Common Law of
Criminal Jurisprudence.
- Thus,
the unvoluntary confession or other vital information obtained from the
accused of the crime by pushing him into a state of hypnotic trance
amounts to self-incrimination, thus violates the Article 20(3) of the
Constitution.
- Such
evidence thus cannot be made admissible in the courts until some
amendments to the said provision occur.
- The
right against forced self-incrimination also widely known as the
right-to-silence in enshrined in the Section 161(2) of the Criminal
Procedure Code, 1973, which state that “such person shall be bound to
answer truly all questions 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”.
- Thus,
the administration of test, like Narco-analysis amounts to forcible
intrusion into one’s mind, thereby nullifying the validity and legitimacy
of the right-to-silence.
- Thus,
in the light of above facts, the Narco-analysis test neither can be
considered as a scientific and reliable test nor it satisfies the existing
golden principles of Indian Laws and Criminal Jurisprudence.
Conclusion
- Though
nobody wants that terrorists and hardened criminals escape from the
clutches of law, but it would be equally unjustified, if knowingly, we
resort to such a test, which is not true to science and law.
- In
India, Narco-analysis is gaining some judicial acceptance (for inadvertent
reasons) and supports from some enthusiatic Law Enforcement Officers
despite being an unreliable and doubtful method.
- We
have to seriously debate about its Legal and Constitutional validity from
human perspective.
- Narco-analysis
may yield useful information at times, but such information’s can also be
obtained by enhancing investigative capabilities, better policing and
training of the personnel.
- It
is the time for Law Enforcement personnel to have a sincere
introspection.
- It
is an invasive technique, which amounts to a sophisticated version of the
deplorable third-degree method.
Courtesy: Ministry of Home Affairs
Recent Supreme
Court judgment on Narco Analysis and Brain mapping
terming it "unconstitutional"
The
Supreme Court judgment on May 5, 2010 related to the involuntary
administration of narco analysis for the purpose of improving
investigation efforts in criminal cases was questioned on the account of
violation of fundamental rights such as:
o
‘Right against
self-incrimination’ enumerated in Article 20(3) of the Constitution, which
states that no person accused of an offence shall be compelled to be a witness
against himself/herself, and
o
Article 21 (Right to life
and personal liberty) has been judicially expanded to include a ‘right against
cruel, inhuman or degrading treatment’.
Narco
Analysis also raises serious concerns related to the professional ethics of
medical personnel involved in the administration of these techniques and
violation of human rights of an individual. Concerns regarding human rights
violations in conducting DDTs were raised long back and the National Human
Rights Commission had published Guidelines in 2000 for the Administration of
Polygraph tests. However, only few of the investigating agencies seen to follow
these guidelines.
