Constitutional Validity of Forced Narco-analysis

Prevention of crime is a prerogative of the State and the punishment of the crime if proved is also the duty of the State. But then what needs to be weighed is the extent to which the State can do away with the individual rights in the garb of fulfilment of its duty. Nowadays, Narco-analysis is a frequently used test for investigation and for prevention of crimes. Narco-analysis is gaining judicial acceptance despite that it is a doubtful science and is considered highly unreliable. It is weak vis-a-vis human rights and also increases the possibility of a gross miscarriage of justice. Invocations of compelling public interest can’t justify the dilution of constitutionally guaranteed rights. [1]

It is alleged that Narco-analysis test is violative of his Fundamental Rights under Article 20(3) of the Constitution of India, 1950. [2] It guarantees protection against self incrimination. [3] The Fifth Amendment to the U.S. Constitution [4] provides for the same privilege. [5] This right is also guaranteed by Article 14(3)(g) of the International Covenant on Civil and Political Rights, 1966. [6]

This privilege extends to all disclosures including answers which by themselves support a criminal conviction or furnishes a link in the chain of evidence needed for a conviction. [7] Witnesses may decline to answer a question where such answers might expose them to subsequent criminal proceedings. [8] The rule is that no witnesses whether party or stranger is compellable to answer any question the tendency of which is to expose the witness to any criminal charge or penalty or forfeiture. [9]

This protection is against the accused to incriminate himself under compulsion. [10] Self incriminatory testimony is to be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. [11] This privilege can be enjoyed by a person accused of an offence who is being compelled to be a witness and such compulsion will result in giving evidence against himself. All the ingredients must co-exist before the protection of the privilege under Article 20(3) can be claimed.

The accused must be compelled to make any statement or to produce any document which had a material bearing on the criminality of the maker of the statement. This ‘Compulsion’ is duress [12] which has to be a physical objective act or where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore extorted. [13] Narco-analysis is a process by which the mind of the accused is conditioned by the insertion of drug which makes the statement involuntary and brings into picture the protection of Article 20(3).

Compulsion may take many forms, it may be both physical or mental. [14] It is a question of fact in each case to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it. [15] Justice Krishna Iyer advocated an expansive interpretation of the privilege and held it to include evidence procured “not merely by physical threat or violence” but also “by psychic torture, tiring interrogative prolixity, over-bearing and intimidatory methods, and the like”. Any mode of pressure, “subtle or crude, mental or physical, direct or indirect, but sufficiently substantial”, applied by the investigative agency to obtain information from a person strongly suggestive of guilt becomes compulsion. [16]

In criminal cases the accused is asked to submit himself for Narco-analysis. Though he submits for the test, but voluntariness cannot be treated as willingness it can be termed as “enforced willingness”. There is a distinction between: (a) volunteering, and (b) being asked to volunteer. Compelling witnesses to reveal the contents of their mind is much more intrusive than a simple test for narcotics. [17] Injecting the drug into the accused without their consent are against their wishes and it amounts to compulsion as it causes injury, may be slight. [18] Consent obtained from the person subjected to Narco-analysis is invalid as it does not conform to Section 88 of the Indian Penal Code, 1860. [19] Injecting of the dangerous narcotic drug is not for the benefit of the person, and hence the consent is invalid. Administration of Pentothal Sodium, an anaesthetic drug is to be done in a well equipped hospital, not in a Forensic Laboratory. [20] It is also against the person’s wishes, that is, violating the ethical concept of informed consent.

The Supreme Court pointed out that the expression used in Article 20(3) is ‘to be’ and not ‘to appear’ as a witness. It follows, therefore, that the immunity given by the clause extends to immunity against being compelled to furnish any kind of evidence which is reasonably likely to support a prosecution against him. [21] It means imparting knowledge in respect of relevant facts in Court or otherwise. [22] The prohibitive sweep of Article 20(3) goes back to the stage of interrogation. Suspects, not yet formally charged but embryonically accused on record, also may swim into the harbour of Article 20(3). To deny the protection designed to defend a suspect because the enquiry is preliminary and may possibly not reach the Court is to erode the substance while paying hollow homage to the holy verbalism of the Article. [23]

The Supreme Court is also of the similar view. Recently, in Selvi & Ors v. State of Karnataka, [24] it has held that since the underlying rationale of the ‘right against self-incrimination’ is to ensure the reliability as well as voluntariness of statements that are admitted as evidence, the compulsory administration of impugned techniques violates such right. Results obtained by such tests bear a ‘testimonial’ character and thus they can’t be admitted in evidence if they have been obtained through the use of compulsion.

The Supreme Court, in the above case, has opened up the dimensions of Article 20(3) by holding that this right is available to persons who have been formally accused as well as those who are examined as suspects in criminal cases. Reliance on the contents of compelled testimony comes within the prohibition of Article 20(3) but its use for the purpose of identification or corroboration with facts already known to the investigators is barred.

When a person is compelled to submit to an examination, that itself, prima facie, looks like pillorying him in the public gaze. [25] An accused person is entitled to rely on the presumption of innocence in his favour and cannot be compelled to swear against himself. [26] Tendency to expose to a criminal charge is wider than actual exposure to such charge. Every answer which has a reasonable tendency strongly to point out to the guilt of the accused is incriminatory.

There were two possible objects in conducting such an examination, either (a) to assist in diagnosis of the accused’s mental state (Narco-analysis), or (b) to ask questions and obtain answers to be used as evidence incriminatory or exculpatory (Narco-interrogation). [27] In this case the object was clearly the second. Any statement made by the accused under such conditions offended against every canon of admissibility. [28] An answer to a question could not be voluntary if the man questioned did not comprehend the question and could not exercise his conscious mind as to whether to reply. [29] It had also been held that both a statement by the accused under truth drugs and medical opinion as to its reliability were inadmissible. [30]

It is submitted that since the test involves forceful intrusion into the subject’s mind, it comes under the prohibitive scope of the Article. For instance, at the conclusion of the test, the information received is indicative of the fact that the accused does have or is in possession of knowledge about the subject on which he was questioned. [31]

Narco-analysis test result may be doubtful if the test is used for the purposes of confession of crimes. Suspects of crime may, under the influence of drugs deliberately withhold information or may give untrue account of incident persistently. [32] Furthermore, the reliability of scientific tests is not free form doubt.

Narco-analysis test is also alleged to be in violation of Right to Life and Personal Liberty under Article 21. This right has enough positive content though worded in negative terms. [33] It takes within its fold ‘some finer graces of human civilisation, which makes life worth living’. [34] It has been held to include Right to Live with Human Dignity [35] and a Guarantee against Torture [36] and Assault by the State or its functionaries. [37] Article 21 has to be interpreted in conformity with the International Law as India is a signatory to the International Covenant on Civil and Political Rights, 1966. [38]

The Supreme Court opened up a new dimension of Article 21 imposing a limitation upon law-making as well, [39] that the law must prescribe a procedure which is reasonable, fair and just. [40] Where a person complains of the deprivation of his life or personal liberty, the Court has to decide whether there is a law authorising such deprivation by a procedure which is reasonable, fair and just, and not arbitrary, whimsical and fanciful. [41] There is no enabling law and there is no due procedure to subject a person to technique like Narco-analysis where a dangerous narcotic is injected into his body.

Also, there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment. [42] It is submitted that the effectiveness of drug used in such tests is also unknown [43] and the courts have excluded serum evidence as such tests. [44] Because of the method’s unreliability and the invasive and dangerous nature of its administration, the so-called “truth serum” is cruel and unusual, shocks the conscience, and violates due process rights. [45]

At present, even psychiatrists seldom perform abreaction using drugs for fear of adverse reaction. [46] These drugs carry an inherent risk of death and the procedure can also involve peripheral nerve injuries, laryngeal granulomas resulting from difficult intubations, [47] harmful effects on blood circulation and breathing, apnoea and anaphylaxis. [48] These procedures and their inherent risks have not changed significantly in modern times and recent studies have merely confirmed old findings. [49] Doctors conducting the test are doing an unethical act as per the International Code of Medical Ethics, 1949. [50]

The use of Narco-analysis is a form of pharmacological torture. [51] Torture is not just physical, but also “includes the methods intended to obliterate the personality of the victim or diminish physical or mental capacities.” Narco-analysis inhibits rational faculties and its potential medical side-effects effectively reduce its reliability. As the accused is presumed to be innocent, permitting compulsory examination of an accused will result in use of force and torture against him to entrap him into fatal contradictions.

In USA the use of Narco-analysis is termed as psychological third degree. [52] The International Law, through many conventions to which India is signatory, forbids the use of torture and admits no exception to it. [53] The use of drugs in interrogation was outlawed under international standards and is a breach of medical ethics. It constitutes cruel, inhuman and degrading treatment amounting to torture as per the Declaration of Tokyo, 1975. [54] It results in torture of the subject as defined in the UN Convention against torture. [55]

‘The Hindu’ reported a case [56] where a lady suspect in a murder case, was subjected to the test and her revelations were found out to be totally false. [57] No new or startling facts were revelled by the accused which shows that it could only endanger the life of the subject without helping in investigation. [58]

The accused has the right to keep silent during the course of investigation as an integral part of his right under Article 21. [59] The concept of inviolable right of silence has been trumpeted as a virtue an indispensible essential feature of fair trial. [60] No one can forcibly extract statements from the accused, [61] who has the right to remain silent during interrogation. [62] By the administration of these tests, forcible intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the right to silence. Narco-analysis negates such protections by making redundant the right to silence of the subject. If interrogated when in his/her full senses, the subject may choose to remain silent. However by breaking down rational defences, Narco-analysis undermines both an individual’s right to remain silent and the principle behind this right. [63]

Right to privacy has been held to be a part of personal liberty under Article 21. [64] The policy of law is that each individual, accused included, has a right to a private enclave where he may lead a free life without overbearing investigatory invasion. The torture-some interrogation and physical menaces and other ingenious procedures, the condition, mental, physical, cultural or social, of the accused, the length and manner of the interrogation and a variety of like circumstances, will go into the pathology of coerced para-confessional answers. [65] It is most humbly submitted that as such no person can be compelled to undergo any scientific test for collective evidence against himself or herself. [66] The term “Right to Privacy” is generic term encompassing various rights recognized to be inherent concept or ordered liberty. [67] It was recognised in the decision of the US Supreme Court in Griswold v Connecticut. [68] The right to be left alone on right of a person to be free from unwarranted publicity is Right to Privacy. The same is guaranteed under Article 12 of the UDHR, 1948 and Article 17(1) of the ICCPR, 1966. [69]

Subjecting suspects to Narco-analysis involves injection of unwanted psychotropic drugs in the human body, which is a blatant violation of Right to Privacy. In India’s context the immunity from invasiveness [as aspect of Art. 21] and from self-incrimination [Art. 20 (3)] must be read together. [70] The executive power cannot intrude on constitutional rights and liberty of a person. [71] In the absence of a specific ‘law’, any intrusion into Fundamental Rights must be struck down as constitutionally invidious. [72] In as much as this invasive test is not authorised by law, it must perforce be regarded as illegal and unconstitutional. [73]

Right to reputation is a also a facet of the right to life of a citizen under Article 21 of the Constitution. [74] In case any authority, in the discharge of its duties fastened upon it under the law, traverses into the realm of personal reputation adversely affecting him, it must provide a chance to him to have a say in the matter. [75] No judicial order can ever be passed by any Court without providing a reasonable opportunity of being heard to the person likely to be affected by such order and particularly when such order results in drastic consequences of affecting one’s own reputation. [76]

Recently, the Supreme Court has also held that forcing an individual to undergo such techniques violates the standard of ‘substantive due process’ which is required for restraining personal liberty. Compulsory administration of such techniques is an unjustified intrusion into the mental privacy of an individual which amounts to ‘cruel, inhuman and degrading treatment’.

Because of the method’s unreliability and the invasive and dangerous nature of its administration, the test is cruel and unusual, shocks the conscience and is not in consonance with due process of law; it is violative of Article 21. The test violates the Right against Torture and of Privacy of the petitioner violating his Right to Life and Personal Liberty enshrined in Article 21 of the Constitution.