INTRODUCTION
The word narco is derived from the Greek word narkc which means anesthesia. In a Narco-analysis test, a person is sent to the stage where he is neither fully conscious nor fully unconscious, called the twilight stage. The subject is administered a sodium pentothal with distilled water. In such a state, the subject wouldn’t be able to lie and would only state facts of which he is already aware. The vitals are continuously monitored during the test. All the information provided by the subject is duly recorded. For a narco-analysis test to be conducted, the court’s permission and written consent of the subject is mandatory.[i]
A narco-analysis test poses a lot of problems. One of them is if the subject is administered fewer narcotics than required, he can fake scenarios. Whereas, if he is administered more amount of narcotics than required, there is a threat of a person falling into a coma.
CONSTITUTIONAL PROVISIONS ON NARCO-ANALYSIS TEST IN INDIA
Narco analysis tests are considered a grave violation of Article 20(3) of the Indian Constitution. According to Article 20(3), “No person accused of any offense shall be compelled to be a witness against himself. In other words, a person cannot be compelled to provide evidence against himself[ii]. To claim protection under Article 20(3), following requirements must be fulfilled:
- Accused of an offense: The very first requirement to be fulfilled to claim protection under Article 20(3) is that the person must be accused of an offense. In America, the scope of protection against self-incrimination is wider as compared to that in India. In America, the protection under clause 3 of Article 20 is also available to the witness unlike in India, where only the accused can claim this protection.
- Compulsion to be a witness: In the case of M.P. Sharma v. Satish Sharma gave a wider interpretation to the term “to be a witness” and held that a person can be considered a witness also by providing documentary and testimonial evidence and not just by giving oral evidence.
- Compulsion to give evidence against himself: The protection under clause 3 of article 20 is only available when the accused is compelled to provide evidence against himself. Requesting a person does not mean compelling him. Compulsion includes threatening or beating the wife, children, or parents of a person.[iii]
In the case of the state of Bombay v. Kathi Kalu oghad, it was held that it must be proved that the accused was compelled to make a statement that was self-incriminatory in nature to claim protection under Article 20(3).
It is also alleged that the narco-analysis test is a violation of Article 21 of the Indian Constitution. Administering a narco-analysis test on a person to gather information can be considered an invasion of his/her privacy and also the amount of mental torture one has to go through during such a process is a violation of the right to live with dignity under Article 21.[iv]
In the case of Nandini Satpathy v. P. L. Dani, the petitioner argued she has the right to remain silent under article 20(3) of the constitution of India and section 161(2) of Cr. P.C. Administration of such tests is a forceful intrusion into the privacy of a person and also a violation of his/her right to remain silent.
ADMISSIBILITY OF NARCO-ANALYSIS TEST
Just like a confession made before a police officer is not admissible in court, revelations made during narco-analysis tests are not admissible in the court of law except under certain special circumstances when the court permits it. Some of the cases in India in which a narco-analysis test was conducted were the Godhra carnage case of 2002, Arun Bhat’s kidnapping case, the Arushi Talwar murder case, and the very recent one in Uttar Pradesh’s Hathras rape case. There were many questions raised concerning the admissibility of such tests in court as it is a clear violation of the right to privacy of an individual which is an integral part of the right to life and personal liberty. Revelations made during a narco-analysis test are not admissible in court. However, it can be used as corroborating evidence to aid in further investigation.
In India, the narco-analysis test is conducted by a team consisting of an anesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer, and supporting nursing staff.
In the case of Rojo George v. Deputy Superintendent of Police, the court while allowing a narco-analysis test to be done held, In present days, conventional methods of questioning will not be helpful enough and such tests like polygraph tests, brain mapping, and narco-analysis tests are needed. But such tests should be conducted under strict supervision of the experts. The court had the same view also in the case of Sh. Shailender Sharma v. State & Another held that narco-analysis tests and other tests help in determining evidence.[v]
In the case of Selvi v. state of Karnataka, the issue with which the supreme court dealt was between efficient investigation and preservation of individual liabilities. A three-judge bench of the supreme court unanimously held that these tests are prohibited under clause 3 of article 20 of the constitution of India and do not fall within the scope of the expression “such other tests”.
CONCLUSION
The reliability of narco-analysis tests has always been in question because the subject not being in a state of conscious mind. On one hand, narco-analysis tests help discover new evidence which aids in further investigation, administration of narco-analysis tests on the other hand is considered a violation of articles 20(3) and 21 of the Indian Constitution and a grave invasion of the privacy of an individual. New technologies and techniques which are considered helpful in solving a case should be welcomed but they should be used only in the rarest of rare cases after considering all the other facts and circumstances to prevent any misuse.
Author – Neha Dulani
University five year law college, University of Rajasthan
[i] https://juriscentre.com/2022/10/05/narco-analysis-test-and-its-constitutional-validity/
[ii] THE CONSTITUTION OF INDIA, 1950
[iii] Constitutional Law of India by J.N. Pandey
[iv] https://www.legalserviceindia.com/article/l375-Article-20-(3)-Of-Constitution-of-India-And-Narco-Analysis.html
[v] https://blog.ipleaders.in/validity-narco-analysis-india-crime-detection-technique/