Article 20(3) And Narco Analysis

Gujarat National Law University COGNITIO

2008

ANIRBAN ROY CHOUDHURY +91 9766655972 40 B Hanuman Nagar, Bhagirathi Niwas Senapati Bapat Road Pune 411016 Maharashtra, India

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MADHUBANI CHAKRABORTY +91 9321288031 S.P.Residency 968/50B Naralibaug, Gurukrupa Hanuman Nagar Senapati Bapat Road Pune 411016 Maharashtra, India

[email protected]

SYMBIOSIS LAW SCHOOL SYMBIOSIS INTERNATIONAL UNIVERSITY Pune, Maharashtra | Anirban Roy Choudhury | Madhubani Chakraborty || SYMBIOSIS LAW SCHOOL

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ARTICLE 20(3) OF THE CONSTITUTION OF INDIA AND NARCO ANALYSIS – BLENDING THE MUCH AWAITED

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ARTICLE 20(3) OF THE CONSTITUTION OF INDIA AND NARCO ANALYSIS – BLENDING THE MUCH AWAITED. “…..throughout the web of English criminal law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt”# •

Article 20 (3) - No person accused of any offence shall be compelled to be a witness against himself. [1]

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“Narco-analysis is a term invented by Horsley to describe a psychotherapeutic technique, in which, by the administration (usually by intravenous injection) of a narcotic drug, the patient is put into a soporose state before being brought to discuss matters which will cause him emotional distress.” [2]

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The beginning of the right against self-incrimination lies in the seventeenth-century trial of John Lilburne[3], a Puritan agitator who when put on trial refused to take an oath requiring him to answer questions posed to him truthfully and was as a result whipped and pilloried . Subsequently, the punishment was declared illegal and the Star Chamber [4] was abolished. It didn’t help Lilburne much of course, but it set a precedent the right against selfincrimination was, in a manner of speaking, born. Since then, this principle of nemo tenetur accusare se ipsum [5] has been handed down in legislative and constitutional history as a forbearer of procedural fairness. # --per Viscount Sankey

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Woolmington vs. DPP, 1935 AC 462 at 481

1 – The Constitution of India, Part III- fundamental rights (right to freedom) Article 20 - Protection in respect of conviction for offences 2 – Butterworth’s medical dictionary 2nd edition

3 – John Lilburn - (1614–29 August 1657), also known as Freeborn John, was an agitator in England before, during and after the English Civil Wars of 1642– 1650. In his early life he was a Puritan,. His works have been cited in opinions by the United States Supreme Court. 4 – Star Chamber – see page 6 5 – No man can be compelled to criminate himself No one is bound to criminate himself. Hence although an accused person may of his own accord make a voluntary statement as to the charge against himself, a justice, before receiving such statement from him is required to caution him that he is not obliged to say anything and that what he does say may be given in evidence against himself. hence also arises the rule that evidence of a confession by the accused is not admissible unless it is proved that such confession was free and voluntary.[The Law Lexicon, 2nd edition 2006, justice Y.V.Chandrachud, pg- 1298]

The privilege does not extend to administrative proceedings. Initially, the law did not extend this umbrella over civil proceedings either; lately the courts have been experiencing a few qualms in this regard. And that for a research into the contours of administrative law is evidently problematic. A diatribe, it would seem, is in order. However, before that it would perhaps be best to appreciate the scope of the right against self-incrimination. Scope of the Right against self-incrimination: Quite simply, the right against selfincrimination is evocable when four conditions are satisfied, namely, ○ The person questioned is an accused ○ The testimony obtained from such person is compelled ○ Such person is in the position of a witness, and ○ Such testimony obtained from the accused in his position as a witness is against him. Hence, within the Indian law, the immunity is only specific, that is, available only to persons suspected of criminal offences. The privilege in criminal law is based on and determined by section 161(2) of the Code of Criminal Procedure [6], section 27 of Indian Evidence Act [7] and Article 20 (3) of the Constitution of India The most pertinent case in this regard is undoubtedly Nandini Satpathy v. P.L.Dani [8], wherein Krishna Iyer, J. widened the scope of the protection considerably. The issues before the court were various: such as whether a potential candidate for accusation can avail of the privilege, does the privilege extend to other pending or potential accusations outside the specific investigation which has led to the questioning, at what instance in the entire proceeding does the privilege become available, the scope of compulsion, and whether the privilege extends to derivative evidence. | Anirban Roy Choudhury | Madhubani Chakraborty || SYMBIOSIS LAW SCHOOL

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6 -- Code of Criminal Procedure, 1973 Article 161(2) – such 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

7 – Indian Evidence Act, 1872 How much of information received from accused may be proved Provided that, when any fact is deposed to as discovered in consequence of information Received from a person accused of any offence, in the custody of a police officer, so Much of such information whether it amounts to confession or not, as relates distinctly to The fact thereby discovered, may be proved 8 -- Nandini Satpathy v. P.L.Dani – AIR1978SC1025, 1978crilj968, (1978)2SCC424, [1978]3SCR608 Civil Appeal No. 315 Of 1978 And Criminal Appeal No. 101 Of 1978 Decided On: 07.04.1978 Nandini Satpathy - Former Chief Minister Of Orissa - Against Whom A Case Had Been Registered Under The Prevention Of Corruption Act, Was Asked To Appear Before The Deputy Superintendent Of Police [Vigilance] For Questioning. The Police Wanted To Interrogate Her By Giving Her A String Of Questions In Writing. She Refused To Answer The Questionnaire, On The Grounds That It Was A Violation Of Her Fundamental Right Against Self-Incrimination.

It was subsequently held that, the right extends to witness and accused alike, that the expression 'accused of any offence’[9], must mean formally accused in praesenti not in futuro, that it applies at every stage at which furnishing of information and collection of materials takes place, that the privilege extends not only to the deployment of the information obtained as evidence in a criminal prosecution, but to the extraction of the information itself , that the true test for testing valid invocation of the right is reasonable apprehension of the accused/witness as to the use of the information against him/herself, and finally, that compelled testimony includes evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like, but not legal penalty for violation. The ‘right to silence’ is a principle of common law [10] and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.

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9 – “Accused of an offence” where evidence oral or circumstantial points to the guilt of a person and he is taken in custody and interrogated on that basis, he becomes a person accused of an offence AIR 1958 All 293, 302 [Constitution of India, Article 20(3)] “Accused of any offence” the description accused of any offence is description of the person against whom evidence relating to information alleged to be given by him is made probable under section 27. It does not predicate a formal accusation against him at the time of making the statement sought to be proved as a condition of its acceptability State of UP v. Deoman, AIR 1960, SC 1125, 1132 In Re Upputholla Srinivasulu, AIR 1958 Andhra Pradesh, 37, 41 [Indian Evidence Act, 1872, section 87] Accused person – see Jhola Singh, 23 C, 493; 16B 661 9 CWN 983 = 2 CLJ 149 ; 6 CWN 163 ; 2 LBR 80 Queen Empress v. Mutsaddi Lal, 21 A 107 Sheoddin v. King Emperor, 6 OC 262 Abraham Verghese v. State of Kerala, AIR 1965 Kerala 175, 176 [Indian Evidence Act, 1872, section 24]

[The Law Lexicon, 2nd edition 2006, justice Y.V.Chandrachud, pg- 31] 10 – Chancellor Kent defined the common law as “those principles usages and rules of action applicable to the government and security of persons and property which do not rest for their authority upon any express and positive declarations of will of the legislature” [ 1 Kent Comm. 469 ]

[The Law Lexicon, 2nd edition 2006, justice Y.V.Chandrachud, pg- 362]

The origins of right to silence may not be exactly clear but the right goes back to the Middle Ages in England. During the 16th century, the English Courts of Star Chamber [11] and High Commission [12] developed the practice of compelling suspects to take an oath known as the “ex-officio oath” and, the accused had to answer questions, without even a formal charge, put by the judge and the prosecutor. If a person refused to take oath, he could be tortured. These Star Chambers and Commissions were later abolished. The right to silence is based on the principle ‘nemo debet prodere ipsum’ [13], the privilege against selfincrimination The term Narco-Analysis is derived from the Greek word narkç (meaning "anaesthesia" or "torpor") and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor [14] in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. The term Narco-analysis was coined by Horseley. Narco analysis first reached the mainstream in 1922, when Robert House, a Texas obstetrician used the drug scopolamine [15] on two prisoners.

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The search for effective aids to interrogation is probably as old as man's need to obtain information from an uncooperative source and as persistent as his impatience to shortcut 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. Development of new tools of investigation has led to the emergence of scientific tools of interrogation like the Narco analysis test.

11 – Star Chamber, a Chamber at the Westminster so called because at first the ceiling there was adorned with images of gilded stars. And in the Stat. 25 Hen. 8 C, 1 it is written “The Starred Chamber” [Tomlins Law Dictionary] a civil and criminal court noted for arbitrary procedure. 12 – Member of the British Commonwealth country 13 -- No man can be compelled to criminate himself No one is bound to criminate himself. Hence although an accused person may of his own accord make a voluntary statement as to the charge against himself, a justice, before receiving such statement from him is required to caution him that he is not obliged to say anything and that what he does say may be given in evidence against himself 14 – Stupor means a different thing from excitement. It signifies a suspension or great diminution of sensibility; a state in which all the faculties are deadened or dazed

15 -- Sodium pentothal is an ultra short-acting barbiturate, which sedates only for a few minutes. It slows down the heart rate, lowers blood pressure, and inhibits brain and spinal cord activity. Sodium amytal and Scopolamine are other drugs used. Some benzodiazepines have been used as truth agents; most notably, the Soviet Union used temazepam for this purpose

Such tests are a result of advances in science but they often raise doubts regarding basic human rights and also about their reliability. Legal questions are raised about their validity with some upholding its validity in the light of legal principles and others rejecting it as a blatant violation of constitutional provisions Finally the Nithari Killings [16] case seems to have been solved and the guilty brought to book – “thanks to the truth serum,” many of us are likely to add. Truth Serum is used to extract the truth but what is thus ‘extracted’ may not, necessarily, be the truth. The first question, therefore, is not if narco-analysis can unearth the truth but whether it is legally permissible or not. And truth serum is clearly not constitutionally ‘clean’, so to speak, because it works by crippling the volition of the accused and loosening his wits up. This, in other words, means taking away one’s control over one’s mind, and making him talk more uninhibitedly. However, the judicial opinion has a different take on it. In Dinesh Dalmia v. State (2006) the Madras High Court [17] ruled that narco-analysis testimony was not ‘testimony by compulsion’ because the accused “may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary.” Now, the most | Anirban Roy Choudhury | Madhubani Chakraborty || SYMBIOSIS LAW SCHOOL

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crucial terms to be analyzed are here are ‘compulsion’[18] and ‘voluntary’[19]. Here they are treated as mutually exclusive in the sense that if the testimony is by ‘compulsion’ it cannot be ‘voluntary’ while it is very much possible to ‘compel’ one to testify ‘voluntarily’. And that would certainly be a testimony by compulsion despite the element of volition inherent in it. One can be beaten, tortured or threatened into testifying or confessing in the court. Would that testimony or confession be voluntary? If this is not voluntary, how could a testimony under the influence of drugs, when even one’s volition is suspended, be ‘voluntary’ by any stretch of imagination? The decision of the High Court clearly states that the person in question is taken to the laboratory “against his will”, and this is where the compulsion starts. In the laboratory he is injected with drugs that make him slip into a trance like condition with his inhibitions down and then the questions are asked, and he answers because he no longer has any control over his brain. And he starts talking about everything that is on his mind – right and wrong, true and imaginary. 16 – Nithari killing, noida Nithari village (Noida) serial killings. The two main accused in the Nithari serial killings Mohinder Singh Pandher and Surendra Kohli have undergone Narco analysis tests in Gandhinagar in Gujarat 17 -- Dinesh Dalmia v. State (2006) the Madras High Court 18 – Compulsion, constraint, forcibly inducement to the commission of an act T.P.Act Section 73(2) ; Registration Act Section 17 19 – Voluntary, of one’s free will ; not constrained by another ; acting voluntarily or willingly Sale of Goods Act Section 2(2) Prov. Const Article 101(3)

Now, the supporters of narco-analysis might argue that the so-called ‘consent form’ sign by the accused supplies the requirements of ‘voluntary disclosure’ [20]. That’s a fallacy, as in case of a court-mandated narco-analysis, the ‘consent form’ has absolutely no relevance because the compliance of a judicial order passed by a competent court is not subject to anybody’s ‘consent’ [21]. The term ‘order’ [22] implies authority to compel obedience. So, if a competent court orders narco-analysis, consent or no consent, the order has to be complied with, unless it is challenged and stayed or reversed by a superior court. The accused has no choice against a valid court order, and has to testify. So, there is ‘compulsion’ [23] and there is ‘testimony’ [24] and it surely is ‘testimony by compulsion’ [25]. However, compulsion per se [26] is not illegal. Therefore, the only question is whether or not the compulsion in this case is legally sound.

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20 – The expression voluntary is used to mean naturalisation in the narrow sense of that term and excluding compulsory involuntary or collective naturalisation which some states have adopted at different times. T.E .Mahomed Usman v. State of Madras, AIR 1961 Mad 129, 138, [Citizenship Act, 1955, Section 9(1)] 21 – Consent, two or more persons are said to consent when they agree upon the same thing in the same sense Act IX, 1872, Section 13 Where consent is given substantially, the court does not very minutely look into the form in which it is given [per. Sterling, J. Re Smith, 59 LJ Ch 284] Swinfen v. Swinfen, (1857), 24 Beav. 559 Walchandragar Industries Ltd v. Ratanchand Khimchand Motishaw, AIR 1953, Bom, 285, 286 Food Corporation of India v. S. K. Samanta AIR 1979, Cal, 193,194, [Arbitration Act (10 of 1940) Section 8(1)(a)] [Also see free consent – 37-8 V, c 77, Section 14, Act 45 of 1860, Section 90] 22 – Order, defined 7-8 V.c 12, Section 20, Act 14, 1882, Section 2, Act II, 1886, Section 3(6) An authoritative direction, injunction, mandate; a decision of a court or judge made [Section 2(14), CPC and Article 13(3)(a), Constitution of India] 23 – compulsion- constraint, forcibly inducement to the commission of an act; the act of compelling or the state of being compelled. 24 – Testimony, The word testimony in its ordinary sense means the statement made by a witness under oath. The statement made by a witness under oath, personal or documentary evidence or attestation in support of a fact or statement; hence any form of evidence or proof [Indian Evidence Act, 1872, Section 157] The word testimony in its restricted legal sense means a statement made under oath in a legal proceeding, and does not embrace a document or a private writing 25 -- ‘Testimony by compulsion’, a forcibly induced statement under oath in a legal proceeding 26 -- per se, by himself, or itself, inherently, in itself

Bombay High Court held in the Abdul Karim Telgi [27] case that “certain physical tests involving minimal bodily harm” like narco-analysis and brain mapping [28] did not violate Article 20 (3) and did not compromise the constitutional protection against selfincrimination. The saving grace is that the confession or the statement made during narcoanalysis is not admissible as evidence in a court of law, and that is the reason why the protection against self-incrimination under Article 20 (3) is not breached. The disclosure leading to the recovery of incriminating material, like a murder weapon or forged documents, is admissible. In the above-mentioned case Bombay High Court seems to have held that narco-analysis is permissible because it involves “minimal bodily harm”, which implies that all such methods of extracting information that inflict minimal bodily harm are legally permissible The expression ‘minimal body harm’ in this context can be taken to mean ‘causing no grievous hurt or long term disability’. Minor physical discomfort or strain is by implication | Anirban Roy Choudhury | Madhubani Chakraborty || SYMBIOSIS LAW SCHOOL

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disregarded. Simply keeping one awake for days on end and pouring water every time one tries to sleep would certainly do ‘minimum bodily harm’ and of course would cause no grievous hurt of long term disability of any kind, but isn’t it torture? Giving a narrow reading to Article 20 (3) and connecting it to bodily harm might not offend the letter of Article 20 (3) but it definitely does violates with the spirit of it because protection against torture is one of the foremost objectives of the constitutional protection against self-incrimination. The judgment also seems to run counter to the accepted principle that the constitutional provisions pertaining to Fundamental Rights in Part III of the Constitution have to be construed liberally so as to afford maximum protection. 27 -- Abdul Karim Telgi, HC stays order on narco-analysis test on Telgi, Bangalore: Karnataka High Court today (Mar 3, 2004) stayed for two months an order of the Special Court allowing narco-analysis and lie-detector tests on prime accused in the multi-crore fake stamp paper scam, Abdul Karim Telgi, to be conducted by the state investigation agency, STAMPIT. Judge Justice A C Kabbin passed the order on a petition filed by Telgi, praying for setting aside the special court's order last week allowing tests on him today. The petitioner had contended that such tests --narco-analysis, polygraph and brain finger printing -- are not only unknown to law but also not acceptable to it. The petitioner had also argued that he is a chronic diabetic, suffering from blood pressure and has a heart ailment, and the tests could be highly risky. STAMPIT has sought to conduct the tests on him to verify the reported statement made by him that he is ready to reveal the names of "big sharks" in the scam. 28 -- Brain mapping, P300 Test: When the brain recognises a person or a sound, it generates a particular type of electric wave, which is called a P300. Sensors are attached to the head of a person undergoing a P300 test and the subject is seated before a computer monitor. He is then shown certain images or made to hear certain sounds. The sensors monitor electrical activity in the brain and register P300 waves, which are generated only if the subject has some connection with the stimulus, in this case pictures or sounds

It is an accepted legal position that the protection under Article 20 (3) does not extend to compulsory production of materials or compulsion to give specimen signatures, finger impressions or blood samples. Narco-analysis, however, is still different and clearly distinguishable from giving specimen signatures or blood sample or even taking a polygraph test because except in case of a narco-analysis, the accused retains his control over what he is doing or saying and at no point of time can he be compelled to disclose any such information that he wants to keep to himself. Giving blood samples and specimen signature in such case is much like allowing the investigation officer to search the residence of the accused and go through his belongings in search of evidence. That’s very much permissible. The legal and constitutional infirmity of narco-analysis lies in the fact that it takes away one’s control on | Anirban Roy Choudhury | Madhubani Chakraborty || SYMBIOSIS LAW SCHOOL

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one’s mind, which brings it in the category of mental torture. And tortures of all kind fall foul with Article 21,[29] under which right against torture is implied. Therefore, narcoanalysis not only stands weak against the challenge of Article 20 (3) but also finds itself in a tight spot with respect to Article 21. Another well settled constitutional principle is that India has to conduct itself in accordance with the international treaties and conventions it is party to. Of course, principles of International Law do not come into effect automatically, they have to be backed by a legislative enactment to be effective, and if they tend to be against the law of the land, the municipal law gets precedence over them. However, in case of torture, not only several statutes, including the Code for Criminal Procedure, provide for safeguards against it but also the Constitution, through Article 20 (3), seeks to provide effective protection in this respect. On the other hand, there is no express statutory support for measures like compulsory narcoanalysis. While narco-analysis is quite clearly low on the scales of human right, the government cannot even plead the existence of domestic law specifically authorizing such means against a plethora of international conventions that frown at the use questionable means of extracting information during a criminal investigation. Therefore, by giving too narrow a reading to legal and constitutional protections in this regard we might also be disregarding our obligations under the International Law, which, under our Constitution, must be discharged unless a specific domestic legislation is irreconcilably opposed to it. Besides, it is not just the legality and constitutionality of narco-analysis that is questionable but also its efficacy and its status as a ’science’.

29 – Article 21, Constitution of India. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law.

However, the final judicial pronouncement on the constitutional status of narco-analysis is yet to come, but it seems in the offing, as in 2006 the Supreme Court of India stayed the order of a metropolitan judge to conduct narcoanalysis on K. Venkateswara Rao [30] in the Krushi Cooperative Urban Bank case. The issue required to be settled by a court decision because Mr. Rao refused to sign the consent form and the Forensic Science Laboratory at Gandhinagar declined to conduct a narco-analysis test with a duly filled and signed consent form. The Supreme Court verdict is awaited It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract | Anirban Roy Choudhury | Madhubani Chakraborty || SYMBIOSIS LAW SCHOOL

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statements from the accused, who has the right to keep silent during the course of interrogation (investigation). 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. Law is a living process, which changes according to the changes in society, science, ethics and so on. The Legal System should imbibe developments and advances that take place in science as long as they do not violate fundamental legal principles and are for the good of the society. The criminal justice system should be based on just and equitable principles. The issue of using narco analysis test as a tool of interrogation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be clearer in the near future. In a situation where narco analysis is gaining judicial acceptances and supports despite being an "unreliable & doubtful" science, we have to seriously rethink about its legal and constitutional validity from human rights perspective. _________________

30 -- K. Venkateswara Rao Crime Investigation Department (CID) officials on Monday filed a petition in the Metropolitan Sessions Judge's Court at Nampally seeking fresh direction for conducting narco analysis test on K Venkateswara Rao, the prime accused in Krushi Bank case who has refused to undergo the test.

Some Notable Events & Cases of Narco Analysis in India•

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In a 2006 judgment (Dinesh Dalmia v State), the Madras High Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said about the accused: "he may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary." In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: "No person accused of any offence shall be compelled to be a witness against himself." Statements made under narco analysis are not admissible in evidence. In January 24th, 2008, a bench of Chief Justice K.G. Balakrishnan reserved its ruling after hearing arguments for three days from various parties, including Solicitor General Goolam E.

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Vahanvati and senior advocate Dushyant Dave, appointed by the bench as amicus curiae to assist the court in the case. Telgi and his accomplices are facing probe by various states' police and other investigative agencies for their alleged criminal acts. These accused people have challenged the legality of the use polygraph, brain mapping and narco-analysis by the investigative agencies to probe the crime. The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra, upheld the legality of the use of P300 or Brain fingerprinting, lie-detector test and the use of truth serum or narco analysis. The court upheld a special court order given by the special court in Pune as mentioned above, allowing the SIT to conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul Karim Telgi. The verdict also said that the evidence procured under the effect of truth serum is also admissible. In the course of the judgment, a distinction was drawn between "statement" (made before a police officer) and "testimony" (made under oath in court). The Judges, Justice Palshikar and Justice Kakade, said that the lie-detector and the brain mapping tests did not involve any "statement" being made and the statement made under narco analysis was not admissible in evidence during trial. The judgment also held that these tests involve "minimal bodily harm". A court in Kerala recently pronounced that no court order is required to do a narco analysis, Disposing of a petition filed by the CBI seeking permission of the court, the magistrate said that filing this type of a plea would only delay the investigation. The court said nobody could stand in the way of the investigating agency conducting tests recognized as effective investigation tools. When the technicalities of the test itself are not clear and uniform, it becomes difficult to accept the stand taken by the court.

A Brief Outline of The Narco Analysis Test-

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The narco analysis test is conducted by mixing 3 grams of Sodium Pentothal or Sodium Amytal dissolved in 3000 ml of distilled water. Narco Test refers to the practice of administering barbiturates or certain other chemical substances, most often Pentothal Sodium, to lower a subject's inhibitions, in the hope that the subject will more freely share information and feelings. A person is able to lie by using his imagination. In the Narco Analysis Test, the subject's inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like state efforts are made to obtain "probative truth" about the crime. Experts inject a subject with hypnotics like Sodium Pentothal or Sodium Amytal under the controlled circumstances of the laboratory. The dose is dependent on the person's sex, age, health and physical condition. The subject which is put in a state of Hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions. The subject is not in a position to speak up on his own but can answer specific but simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers.[18] Wrong dose can send the subject into coma or even result in death. The rate of administration is controlled to drive the accused slowly into a hypnotic trance. The effect of the bio-molecules on the bio-activity of an individual is evident as the drug depresses the central nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated by the investigating agencies in the presence of the doctors. The revelations made during this stage are recorded both in video and audio cassettes. The

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report prepared by the experts is what is used in the process of collecting evidence. This procedure is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required Supreme Court reserves ruling on narco analysis Friday, Jan 25, 2008, [The Hindu] •

A three-Judge Bench, comprising Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and J.M. Panchal, reserved judgment at the conclusion of arguments by counsel for the petitioners, the Centre, the Central Bureau of Investigation and the amicus curiae, assisting the court. • The petitioners argued that courts could not direct the prosecution to hold narco analysis, brain mapping and lie detector tests on the accused against their willingness as it would be violative of Article 20 (3) of the Constitution (no person accused of any offence shall be compelled to be a witness against himself). • He said, “While on the one hand, constitutional embargo is omni-present, the existing statutes, including the Cr.P.C. and the Indian Evidence Act, do not expressly authorise collection of evidence through process, during which the accused may be compelled to be a witness against himself. Clearly there is no backing in law for the police to collect such evidence through these tests nor has there been any power in the courts to authorise the police to do so.” • Mr. Dave said, “Such tests can only be done by legislation, which may authorise the same as under TADA. To allow adoption of any of the three tests in investigations involving day to day crimes would negate the very values for which the society stands and the Constitution affirms.” • Earlier senior counsel T.R. Andhyarujina, appearing for the CBI, submitted that none of the three tests “are unconstitutional or illegal. They are modern and scientific techniques, which are authorised by law and are necessary to be carried out in the investigation of an offence of such a nature and under such circumstances where there are reasonable grounds for believing that such tests will provide evidence as to the commission of an offence.” • He said: “Results obtained from examination of the accused would not offend the prohibition against testimonial compulsion under Article 20 (3) of the Constitution. • “Further, these tests, including narco analysis, are valuable for not only punishing the guilty but exonerating an accused person. They avoid the temptation to sue third degree methods like torture to obtain information. Such tests cannot be construed as invasion of privacy of the accused.” To be noted: • Section 45 of the Indian Evidence Act, 1872 gives evidentiary value to an Expert opinion. • Blacks Law Dictionary defines Expert Evidence as evidence about a scientific, technical or professional issue given by a person qualified to testify the cause familiarity with the subject or special training in the field. • US courts in most jurisdictions doubt the reliability of lie detector tests and refuse to admit the results. In the case of Townsend v. Sain, it was held that the petitioners confession was constitutionally inadmissible if it was adduced by the police questioning, during a period when the petitioners will was overborne by a drug having the property of a truth serum. • In another famous case of US v. Solomon, which directly debated the issue of narcoanalysis, the expert opinion given to the court established that truth serum is now generally accepted

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investigative technique. The experts said: Adequate safeguarding against unreliability is possible. However narcoanalysis does not reliably induce truthful statements. In India, the decision to conduct narcoanalysis is usually made by the Superintendent of Police or the Deputy Inspector-General handling a case. While the expert studies and court opinions available internationally have granted that there may be some use in narcoanalysis, the overwhelming evidence is that narcoanalysis is by no means a reliable science. There are some significant legal aspects to the narcoanalysis debate, which are becoming clearer with the conducting of such tests in the country. The same is discussed in the article with the help of case laws. 1. In a 2006 judgment (Dinesh Dalmia v. State), the Madras High Court held that subjecting an accused to narcoanalysis does not violate any constitutional rights of the person, as revelation by accused when these tests are conducted is voluntary. However, the criticism is that this judgment turns on a technicality. The admission by accused after he is injected with such drugs is always technically voluntary. 2. In 2004, the Bombay High Court ruled in the multi-crore fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination as guaranteed by Article 20(3) of the Constitution. Statements made under narcoanalysis are not admissible in evidence. However, recoveries resulting from such drugged interviews are admissible as corroborative evidence. In this case, Abdul Karim Telgi, underwent narcoanalysis in Bangalore in order to aid investigation and facilitate the collection of evidence. The Karnataka Forensic Science Laboratory (KFSL) in Bangalore conducted a polygraph test, brain mapping, and a narcoanalysis procedure. The Narcoanalysis test submitted an immense amount of information but doubts were raised about its value as evidence. One view was that the test should be looked at as an aid in collection of evidence or as corroboratory piece of evidence and since it was always done after a grant from the court and a signed consent of the subject, it did not amount to testimonial compulsion. 3. The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra, upheld the legality of the use of P300 or brain finger-printing, lie-detector test and the use of truth serum or narcoanalysis. It also upheld the admissibility of evidence procured under the effect of truth serum. The judgment also held that these tests involve minimal bodily harm. Surender Koli, main accused in the Nithari case, was brought to forensic science laboratory in Gandhinagar in January 2007 for Narcoanalysis. Polygraphic test was conducted on Moninder Singh Pandher and his servant Surendra Koli, accused of serial killings of women and children in Nithari, to ascertain the veracity of their statements made during their custodial interrogation. Various confessional statements were made by he accused under the effect of the drug, he could remember the names of the females he had murdered and revealed that his urge to rape them after murdering them. The Supreme Court at the earliest opportunity should clarify the extent to which evidence gathered in such a manner may be made admissible or if it should only be used as means of collecting evidence.

An alternative to narco-analysis test

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As the country debates on the validity of narco-analysis and brain mapping tests, forensic experts now claimed that a new technology Brain Electrical Oscillation Signature (BEOS) is more ‘efficient and non-invasive’ than the current scientific methods followed in the investigation of criminal cases. “BEOS can read the reactions of brain even if the suspect remains silent. It can pin-point the actual person present in the crime scene among many suspects which both narco-analysis and brain mapping cannot do,” Mukundan C R, consultant to the Directorate of Forensic Sciences said. Mukundan, who is the brain behind the new technology, said BEOS has already been appreciated by the British Psychological Society and the Society wants to have a ‘collaboration with us and have asked us to set up a lab there to carry out more research.’ He said narco-analysis test and brain mapping has been discarded by almost all investigating agencies in different parts of the world as they do not give ‘concrete results’. “In narco-analysis test, the respondent blows out of 5% sense and 95% non-sense. Under the influence of drugs, he speaks out even what he has not done but had wished to do. It is like hearing a person who has had two to three pegs of whisky,” he said. Giving reasons for disowning brain mapping, he said, “It does not give concrete results. There is no specificity and is like diagnosing a disease by just taking notes of the body temperature. Body temperature does indicate something is wrong but you cannot diagnose the actual disease,” Mukundan said. He explained that both brain mapping and BEOS record time-locked electrical activity from the surface of the brain when the suspect is presented with specially formulated auditory probes referring to various aspects of the crime being investigated. While in the case of brain mapping, the suspect has to say something but under BEOS, he can remain silent. “This is the biggest advantage of BEOS. The suspect is not forced to answer, his choice of remaining silent and not being subjected to reply out of force or fear is restored. The brain will react to probes put ahead of him,” Mukundan said

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Constitutional Validity of Scientific Tests for “Lie- Detection” The Constitution of India Code of Criminal Procedure, 1973 Indian Evidence Act, 1872 The Fundamental Right to Privacy: A Case by Case Development sans Stare Decisis -- Sandeep Challa Narco analysis -- S.Malini & B.M.Mohan, Forensic Science Laboratory, Bangalore Narco analysis, torture and democratic rights -- Twenty second Dr. Ramanadham Memorial Meeting Law Commission of India, One Hundred Eightieth Reports on Article 20(3) Of The Constitution Of India And The Right To Silence May 2002 (Justice M. Jagannadha Rao) Narco analysis leads to more questions than answers -- Jagadeesh N Is Narco analysis on accused legally tenable? 14 Jan 2004 the Times of India What is Narco-analysis test? 8 Feb 2004 The Times of India Narco Analysis : Legality and Application -- Major General Nilendra Kumar, AVSM, VSMNeed for Narco analysis test -- M Shamsur Rabb Khan, the Daily Star Law of Evidence -- Sir John Woodroffe and Syed Amir Ali, 17th Edition.(2001), Butterworth’s Publication. Fields Commentary, Law of Evidence, 12th Edition.(2006), Delhi Law House. Chaudhry,R.N., Expert Evidence (Medical & Non medical), 2nd Edition.(2004), Orient Publishing Company. Ratalal & Dheerajlal, The Law of Evidence, 22nd Edition.(2006), Wadhwa Nagpur. Narcoanalysis and some hard facts, Sriram Lakshman Lie tests open to judicial review by Rakesh Bhatnagar Forensic Lie Detection Procedures Without Scientific Basis by William G. Iacono, Narcoanalysis and Criminal Law by John M.MacDonald, M.D., Denver,

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DNA : Daily News & Analysis

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The Hindu The Sunday Statesman Jesani A. Medical professionals and interrogation: lies about finding the truth. Indian J Med Ethics 2006 Oct-Dec; 3: 116-117.

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MCI. Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. Gazette of India dated 06.04.02, part III, section 4

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| Anirban Roy Choudhury | Madhubani Chakraborty || SYMBIOSIS LAW SCHOOL

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