Introduction
In the ever-changing world of criminal law, the issue at hand between what technology brings to the table and what it means for individual rights is a great constitutional question. Of all the issues present in this field, the most argued is that of narco analysis. Narco analysis is a psychological approach in which we put a subject under the influence of drugs like sodium pentothal, which in turn lowers their inhibitions and gets them to tell the truth. In India, this method has become a popular tool for the collection of intelligence and leads in the course of criminal investigation, which includes high-profile cases of terrorism, murder, and corruption. The science behind it is that in a semi-conscious state, the subject is less able to make up stories, which in turn gives the investigators access to information that may not have been accessible otherwise.
However, we see that although a very useful tool, the technique is still very much a matter of debate. Critics put forth that it goes against basic human rights of the accused, which are put forward in the Constitution of India, especially the right against self-incrimination. In the issue of drugs used to get out of which are the accused’s consents not given, we see very large issues related to body autonomy, mental privacy, and the fact that confessions are, in fact, voluntary. Also, the reliability of such statements, the issue of suggestibility and the ethics of what is done without full and informed consent add to the legal and moral issue at hand.
This article reports on the structure that is in place in India related to the use of narcoanalysis. We see here also which laws and court decisions play a role in that, and we look at how it plays out in terms of the right against self-incrimination and personal liberty, the judicial which is reported by Indian courts, and also the large-scale issues this has for the criminal justice system.
Legal Framework
Constitutional Provisions
No man or woman charged with a crime will be made to be a witness against himself or herself. This is a basic protection which also puts a stop to state abuse and which upholds the principle of presumption of innocence in criminal cases. Article 20(3) states that the prosecution has the burden of proof, and they cannot be made by threat or coercion to produce evidence which may lead to his or her conviction.1
Along with this constitutional protection, Article 21 of the Constitution, which has had its scope greatly increased by the Supreme Court to include the right to privacy, to dignity, and to bodily autonomy, also plays a role. We see in the case of invasive investigative methods like narco analysis that which go after the mental and physical self of an individual, we have the violation of what is put forth in Article 21.
Statutory Provisions
In terms of statute, we see that Section 161(2) of the Code of Criminal Procedure, 1973 reports that a person is not required to answer questions put to them by the police which may lead to a criminal charge. Also under the Indian Evidence Act, 1872, we have that in Section 24, which states that no confession which is a result of inducement, threat or promise is to be used as evidence. Also, Sections 25 and 26 report that confessions to the police are inadmissible in court unless made before a magistrate. These provisions are put in place to report that which comes to court are free, voluntary and credible confessions.23
International Law
Internationally, India has signed the International Covenant on Civil and Political Rights (ICCPR), which, by Article 14(3)(g), puts forth the right against self-incrimination. This is the world’s agreement that we must protect individuals’ dignity and autonomy, which extends to criminal investigation also. Also, the UN Human Rights Committee has reported time and again that the use of techniques like narco analysis is a violation of this right.4
In Article 20(3) of the Indian Constitution.
Code of Criminal Procedure 1973, Section 161(2).
Indian Evidence Act 190 of 1872, which includes sections 24, 25, and 26.
Article 14, Paragraph 3 (g) of the International Covenant on Civil and Political Rights.
Case Laws
• Selvi v. State of Karnataka, 2010 (7 SCC 263)5
Facts: Appellants challenged the issue of the use of narco analysis, polygraph tests and brain mapping, which they did without the consent of the accused. These techniques put forth by the state were used during custodial interrogation of which the accused did not give prior permission.
Held: The Supreme Court held that which is to force out testimony is a form of compulsion and is therefore a violation of Article 20(3) and Article 21. The judgment also put forth the value of mental privacy and physical integrity as elements of personal liberty.
Significance: This is a breakthrough decision which recognised the importance of individual rights and that no one may be made to go through such tests without first having given their consent. Also, it put an end to the use of narco analysis in criminal investigations against the will of the person.
• Nandini Satpathy v. P.L. Dani, 1978 2 SCC 424.6
Held: The Supreme Court has ruled that which which one does not incriminate oneself applies at all stages of investigation and that includes the right to remain silent during police interrogation. Also, it reported that before a formal charge is brought forth individual is entitled to this constitutional protection.
Significance: The decision, which expanded the range of Article 20(3) to include that which is beyond the traditional scope of protection, which was to prevent self-incrimination, which we see to be a thing of the past and which in fact has made its way into all aspects of the criminal justice process.
• Kathi Kalu Oghad vs State of Bombay AIR 1961 SC 1808.7
Held: The Court made a distinction between that which is physical in nature (fingertips, handwriting) and that which is in the form of an oral or written statement. Of the former type is admissible, the latter is protected by Article 20(3).
Significance: This issue has been at the core of what is legal and what is not in terms of investigative techniques. In the case of narco analysis which includes oral reports we see a clear issue.
• D.K. Basu versus State of West Bengal, AIR 1997 SC 610.8
Held: The Court put out in-depth guidelines which put forward the prevention of custodial violence and which also promoted transparency during arrests and interrogations. Also, it brought to light the issue of how individuals in custody should be humanely treated.
Significance: The judgment sets a base for what will be done in detaining persons, which includes the use of forced narco analysis.
• Rojo George v. Deputy Superintendent of Police, 2011 Ker 3174.9
Held: The Kerala High Court has ruled in favour of narco analysis with the accused’s prior knowledge and consent, which at the same time also put forth that statements made under the influence of the drug are not to be used as evidence.
Significance: The court has put forth a fair solution, which is to allow for the use of the technique voluntarily only for investigative leads, not for use as evidence.
• State of Bombay v. Kathi Kalu Oghad, 1962 AIR 1808.10
Held: The Court reported that which falls under the heading of testimonial compulsion is the communication of personal knowledge, not other types of physical action. Also, it clarified the extent of self-incrimination.
Significance: This issue has been at the core of why narco analysis is not accepted as admissible evidence, as it has not been, due to its nature related to cognition.
• Ram Jethmalani v. Union of India (2011) 8 SCC 1.11
Held: In that which is unrelated to narco analysis, we saw put forth the issue of transparency and constitutional accountability in investigations.
Significance: The court held that any investigative tool must comply with constitutional morality and due process.
Critical Analysis
The issue of narco analysis in criminal investigation brings up very large constitutional and ethical issues. The technique as it stands interferes with a person’s thought process which in turn forces the subject to give out info under the influence of drugs. This goes to the root of the principle of voluntariness which is the foundation of admissible confessions in Indian law. In the Selvi case the Supreme Court reported that which of these techniques is in fact an affront to the right to a fair trial, the right to remain silent, and also the larger rights to privacy and personal liberty.
From a legal theory perspective, the value of narco analysis is defeated by the issues it presents for individual freedom and the health of the criminal justice system. We see that what is put forth by this method is of little value, as it’s prone to error; the drug-induced state, which affects memory and reason, breaks the reliability of statements. Also subjects may make up info or react to leading questions which in turn produce false information and wrongful conviction. In a free society which is founded on the rule of law these types of speculative and invasive methods do not have a place.
That also which is put forth is that proponents put forth that which says we may use narco analysis to aid in investigations if done with full informed consent and under watch of the judiciary which they present does not put forward that which which is the issue of the great power dynamic between the law enforcements and the accused which plays out especially in a custodial setting. Also what is called free will may in fact be a result of coercion, fear, or misinforming.
Technology in forensics has brought forth very reliable and less invasive options. We see that DNA analysis, digital forensics, and data triangulation methods are effective in this regard and also that they do not cross into issues of the constitution. Thus, it is time we put our effort into which scientific investigation methods we put in place that at the same time are efficient and ethical.
There is an issue which requires we put in place a wide ranging legislative framework which sets out the what, the how far, and the parameters within that investigative tools like narco analysis fall under. Also this structure must put forth that which is required is informed consent, judicial buy in, and strict rules of evidence. Until we have a put in place a legal structure for this, we are left open to the issues of abuse and arbitrary use of said techniques.
Conclusion
The issue of which legal and ethical issues present themselves in the field of narco analysis is that they put into play the balance between what criminal justice requires and what is reasonable in terms of basic rights. Although it may provide break through in terms of investigation at a short term, the use of this technique also steps over the right against self incrimination and the right to personal liberty as provided in the Indian Constitution.
The in which we have seen the judiciary take a stand for example in the case of Selvi is that they have put forth a principled position which puts individual dignity above procedural convenience. This is a mark of what may be called mature constitutionalism which in turn does not buy into the idea that the end justifies the means. Also we see that which the criminal justice process still relies on narco analysis in large part without consent and without statutory support which in turn hurts the process’ legitimacy.
Looking ahead the legislature must put in place which is to say clear rules which govern the use of these techniques. We see that which should include in great detail what consents are given, a requirement for judicial oversight in all cases and that evidence obtained via these means may not be used in court. Also at the same time law enforcement agencies must be provided with what is in terms of advanced investigative tools which also are rights compatible.
In that which we put to an end, the pursuit of truth in criminal cases is a issue of what the state does have an interest in but this must not come at the expense of constitutional protections. Narco analysis as an investigative tool is of last resort, we should use it rarely if at all, ethically and under very tight legal supervision. We must be dedicated to justice also as we are to individual rights and due process.