Right to silence made a dead letter: The Indian experience of Narco analysis tests.

“The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law’’

Olmstead v United States 277 U.S. 438 (1928).

Believed to be a more humane and palatable scientific investigative tool, the ''narco analysis test'', more commonly referred to as ‘’truth serum’’ is increasingly, probably alarmingly relied upon by the Indian police to gather investigative data. This undue tendency to resort to narco analysis tests has burst out an outcry among many criminal defense lawyers, psychologists and medical professionals in India. It has raised alarm bells over the insidious threat it poses to statutory privilege from self-incrimination and right to silence guaranteed to every suspect by the Indian constitution.

In the recent decades, with the help of technological revolution in the field of criminology, law enforcement authorities have found novel investigative techniques such as (P-300) brain mapping, polygraph, and lie detector tests among many others for effectively dismounting information from uncooperative suspects. Narco-analysis test is one such scientific tool used for the main purpose of extracting confessions from suspects by putting them into a hypnotic trance.

What is narco analysis?

The term Narco-analysis is a phrase coined by Harselley, and is derived from the Greek word ‘narke’ meaning ‘anesthesia’ or ‘topor’. It is a psychothepetillic technique which uses barbiturates to induce individuals into a sleep-like state. Narco analysis became more mainstream in criminal investigative realms only by early 90’s. But with a pedigree of almost a century, the history of narco analysis test runs to Texas when Scopolamine hydrobromide was first used by Robert Ernest House, a Texas obstetrician on two prisoners in 1922 to determine their guilt/innocence. Robert House who is known as the father of truth serum has in one of his famous addresses remarked that "In the state induced by the drug, the individual will reply to questions with childlike simplicity and with childlike honesty, without evasiveness, guile, deceit or fraud, as the answer to a query that is stored in his mind as memory."

Narco analysis is a procedure involving intravenous administering of chemical substances called barbiturates to achieve a hypnotic trance by curbing power of imagination and overcoming inhibition of an individual to talk more freely. It is basically a truth testing mechanism. It is generally believed that conscious mind of a person does not speak truth, therefore what the test tries to achieve is to put a  person into a partially-conscious state, thereby preparing him to reveal all facts within his knowledge just as they are registered in his brain. Depriving a person of his conscious mind makes him difficult to lie.

Narco-analysis procedure explained.

Drugs infused with barbiturates control neuro transmitter inhibitor GAABA (Gamma amino butyric acid), so as to send the suspect into a state of inhibition. Losing inhibition has the effect of depriving a person of his ability to manipulate and fabricate using his imagination. Barbiturates act as agents of sedative and slow down functions of vital organs such as the heart, the spinal cord, and the head. These drugs are sleep-inducing anesthetic drugs, not simple over-the-counter drugs. Interestingly, Sodium pentathol or Soidum Amytal, one of the most-commonly used barbiturate substance in truth serum also happens to be the lethal drug administered for executions in some states of US. Truth serum is not a single chemical compound. These drugs are dissolved in distilled water and mixed with dextrose. They are administered intravenously for over 2-3 hours. These are powerful anesthetic drugs which are used by psychiatrists for treating patients to help them remember traumatic experiences which they otherwise would not remember. Some experts opine that these powerful psychotropic drugs do not have side effects since they dissipate into an individual’s system within a few minutes. But one cannot rule out the consequent health risks of the test even where a trained medical practitioner properly administers the right dosage. It is ethically unacceptable to inject even small amounts of questionable powerful drugs for non-health purposes if it involves health risks. This is against the basic notion of inviolability of human body.

During the test suspects are placed under the supervision of a forensic psychoanalyst and anesthetist.  Physician certifies the condition and fitness of the suspect before and after the test while anesthetist controls the depth of anesthesia required to control the inhibitory character of the suspect. The forensic psychologist examines and interrogates the suspect and prepares reports and gives videotapes of the procedure to the courts. However, tests performed in the presence of the police is prone to be dismissed as they are generally deemed to be coerced.

Narco-analysis test scientifically and legally unreliable?

Drug induced investigative techniques have posed profound challenges to constitutional criminal jurisprudence and are denunciated in most countries owing to concerns over unconstitutionality and threat to inviolability of human dignity. And there are growing concerns as to questions of policy, ethics and legal and scientific validity of the narco test. And even more, the threat it poses to fundamental right against self-incrimination and right not to be a witness against oneself has made the overall acceptability of this novel art of criminology a questionable one. Supporters of the test see it as particularly beneficial for extracting information from uncooperative individuals suspected of terrorism activities and for preventing future terrorist attacks. Critiques point to the most fundamental inadequacy of the narco test. Depending on the dosage of barbiturate drugs injected and the depth of the hypnotic trance achieved, some suspects still can deliberately withhold information and give untruthful statements. Dose of barbiturates depend on factors such as age, sex, will power, mental capacity and health conditions.  It is important to note that under a hypnotic state a suspect can answer only simple, uncomplicated questions on the basis of suggestions offered.  As such some individuals in a delusive state can become exceedingly suggestible to questions put to them, leading them to give false and misleading confessions. There is also a greater likelihood of a suspect undergoing a narco analysis test to reveal highly embarrassing personal information, raising questions over the right to privacy. India, however, does not expressly recognize right to privacy as a constitutional right.

How India embraced narco analysis test.

The first ever narco analysis test conducted in India was at the Forensic Science Laboratory at Bangalore in 2001. But it was the narco test performed on seven accused in Godhra train carnage in 2002 which sparked interests in investigators to use to this new investigative technique. And since then the test has been frequently resorted to in high profile criminal investigations. Before narco analysis arrived in India, it was used by law enforcement authorities in the US to obtain confessions. However in US performing narco analysis on suspects is ruled as unconstitutional investigative procedure. US Supreme Court in Townsend v Sain held that narco analysis is in contravention of the Fifth Amendment rights. However going contrary to the supreme court ruling, the US authorities went ahead with performing narco analysis tests on suspects of 9/11 attacks. Similarly in India, the only surviving suspect in Mumbai terrorist Attack, Mohammed Amir Ajmal Kasab, was subjected to a narco analysis test. Police investigators believe narco test to be particularly helpful in countering terrorism activities.

Indian judiciary's stamp of approval of the procedure.

For the last decade or so, Indian judiciary gradually but steadily sanctioned and legitimized the practice of narco analysis test and its scientific and legal validity with little or no regard for human rights implications under Article 21, danger to right to silence under Article 20(3) and other policy and ethical issues and suspicions raised about its scientific reliability. As a general rule, any investigative technique, for instance DNA testing, must have undergone experimental and demonstrative stages in order to solidify their scientific reliability before gaining general or judicial recognition. However it was not the case with narco analysis test in India. Narco analysis still remains a highly controversial and unreliable investigative tool despite the ubiquity of the test in general practice.  Ramachandra Ram Reddy v. State of Mahrashtra, Arun Gulab Gavli v. State of Maharashtr,  Smt. Selvi & Ors. v. State and Dinesh Dalmia v. State are only a few among many other cases where State High Courts have given their seal of approval to the procedure. In Dinesh Dalmia v. State the Madras High Court readily justified the narco analysis test and appreciated the test as an alternative to torturous third degree investigative methods, in the following manner.

‘’Investigating agency is completely in the dark as to the end use of such a huge amount siphoned off by the accused. The investigating officer did not use third degree methods to extract incriminating materials through the mouth of the accused. A scientific test on the accused is prayed for by the prosecution. That the accused will face health hazard and his physical frame will be endangered if he undergoes such tests are totally without any scientific basis. ... The scientific value of the tests and the credibility thereof will have to be evaluated only during the course of the trial. Unless such tests are conducted, the investigating agency may not be in a position to come out with clinching testimony as against the petitioner. Subjecting an accused to undergo such scientific tests will not amount to breaking his silence by force. He may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary’’

The Supreme Court of India also in Jitubhai Babubhai Patel v. State of Gujarat ruled that the test does not violate the constitutional guarantee given under Article 20(3) and Article 21 of the Indian Constitution.

“Statement which is recorded during the course of narco analysis will attract the bar of Article 20(3) only if it is inculpating or incriminating the person making it. Whether it is so or not can be ascertained only after the test is administered and not before. In our opinion therefore, there is no reason to prevent administration of this test also because there are enough protections available under the Indian Evidence Act, 1872, Code of Criminal Procedure, 1973 and the Constitution of India to prevent inclusion of any incriminating statement if one comes out after administration of the test."”

Evidentiary value in the narco analysis test in the Indian context.

The Indian courts do not admit narco-nalysis as evidence. Despite these statements made in a drugged stupor are inadmissible in court, results of narco-analysis tests can still be of some corroborative value. Selvi v State of Karnataka considered the question of the evidentiary value of the results of narco-analysis test. It ruled that the drug-induced revelations made during a narco-test are inadmissible in court (even where suspect voluntarily participates in the test). However where suspect voluntarily participate in the test, discoveries and other pieces of evidence found using the results of such narco-test are admissible in the court under section 27 of the Evidence Ordinance.

Privilege of self-incrimination and right to silence in danger?

The Indian Constitution incorporates a protection against compulsion of testimony. According to article 14(3), no person shall be compelled to confessions incriminating him, and Article 20(3) of the constitution clearly states that ‘’no person accused of an offence shall be compelled to be a witness against himself’’. The critics opposed to narco analysis tests see the test as a blatant violation of Article 20(3) and contends that since the words ‘to be a witness’ in Article 20(3) includes oral and written testimony imparting knowledge in respect of relevant facts by an oral or written statement made in court or otherwise(State of Bombay v. Kathi Kalu Oghad[1962]), statements made during a narco analysis test also amount to statements and therefore attracts the bar in Article 20(3). Any form of compelled testimony used for obtaining inculpating evidence whether they be physical or mental violates Article 20(3). It is argued that narco analysis amounts to mental compulsion of suspects which is achieved through chemical change in brain inhibitors. State of Bombay v. Kathi Kalu Oghad observed that mental compulsion takes place when a person's mind has been so conditioned by some extraneous process so as to render the making of the statement involuntaryand therefore extorted. Section 161(2) of the Indian Code of Criminal Procedure also contains a statutory right to silence during police interrogations. "A person 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."

 

Carrying out the test against the will of the suspect raise undeniable questions as to the eligibility of the evidence gathered based on the results of the test. It is generally accepted that iformed consent is a prerequisite prior to carrying out of narco analysis test. Suspect should be informed of all the technicalities of the test and the effect of the drugs under whose influence he shall be interrogated and all other physical and mental after effects consequent to the procedure. This makes the character of a statement extracted from suspects during a narco analysis test a voluntary one. A suspect made to undergo a narco analysis test without his consent is effectively deprived of his right to remain silent and right to refuse to answer to incriminating questions during interrogations. It contravenes a person’s right to freedom of decision and exercise of will. Injecting mind-altering chemicals into an individual’s body without that person’s will intrudes overall functioning of his brain and makes him act against his will. It is a clear breach of one’s right to life and an invasion of personal liberty.

Despite narco analysis is touted as a more humane alternative to barbaric and torturous interrogating methods of individuals suspected of serious offences such as terrorism, yet, the fecile and unreliable nature of its procedure is believed to have contributed to further decline of standards of police investigations in India, witnessing a clear deviation from more pedestrian forensic investigative techniques. The effectiveness of narco analysis test is not scientifically infallible. The test is merely based on what is perceived to be the truth, but not the truth per se. Thus, there are deep seated fears that invasion of unreliable scientific methods into the sphere of criminal investigations, like the case of narco analysis procedure, could further deteriorate conditions suspects are forced to bear during police investigations. Though physical torture is omitted to a certain extent, subjecting an individual to a questionable anesthetic procedure involving powerful psychotropic drugs still constitutes some form of physical harm and exerts on the individual mental compulsion to disclose information that individual in a conscious state might feel uncomfortable to disclose. At a time when the controversy around narco-analysis test has opened up a pandora’s box of issues ranging from constitutional, ethical to scientific reliability of the test, one would wonder whether Indian police should continue to sit under the shade shedding pepper into the poor devil’s eye rather than go about in the sun hunting up for evidence using more reliable and mainstream investigative methods. We are living in an era of human rights, and the police, as the principal investigating agency, can only be expected to adopt universally accepted and more civilized investigative techniques and procedures.