Narcoanalysis (Truth Serum) in India: Through the lens of Article 20(3)
Narcoanalysis or Truth serum is one of the most controversial tests with respect to its legality and constitutionality. The test is conducted by injecting 3 grams of sodium pentathol dissolved in 3000 ml of distilled water and the solution is administered intravenously along with 10% of dextrose over a period of three hours with the help of a… Read More »
Narcoanalysis or Truth serum is one of the most controversial tests with respect to its legality and constitutionality. The test is conducted by injecting 3 grams of sodium pentathol dissolved in 3000 ml of distilled water and the solution is administered intravenously along with 10% of dextrose over a period of three hours with the help of a qualified anaesthetist.
Introduction
With Science and Technology outpacing the rate of development in society, it becomes absolutely indispensable for the legal system of a society to adapt to the newer changes. Law is dynamic and not static. It has always been subjected to multiple amendments and evolution. And as it is said that law is the cement of the society, the laws of the land will have to change to suit the newer needs and developments of the society.
Furthermore, the judiciary has the responsibility of interpreting the law for the greater good[2]. Therefore, it becomes imperative for the judiciary to stay in touch with technological and scientific developments in order to ensure the greater good. Krishna Iyer J remarked, “the courts self-criminate themselves if they keep the gates ajar for culprits to flee justice under the guise of interpretative enlargement of golden rules of criminal jurisprudence”. But the question that arises is – can the end justify the means?[3] Hence, the issue of constitutional validity and evidentiary admissibility has to be looked into and given some thought thereby making it compatible with scientific and technological advancements.[4]
To talk of the subject, the Narcoanalysis or the colloquially called the Truth Serum is one such scientific development in the country which, till date has not been validated by the Constitution of India. Article 20(3) of the Constitution of India 1950 talks about self-incrimination, stating, “No person accused of any offence shall be compelled to be a witness against himself.” It is now of popular knowledge that the Narcoanalysis or the Truth Serum test is not legalised and not in common usage in the country. Only in the rarest of rare cases, the respective authorities are given permission to conduct Narcoanalysis.
This procedure isn’t legalised as it violates the right bestowed upon the accused, that is ‘Right against Self-incrimination’ enshrined under Article 20 (3) of the Constitution. It is now of paramount importance to understand how this procedure is conducted in order to thoroughly understand its conflict with Art. 20(3).
Procedure of Narcoanalysis
Narcoanalysis or Truth serum is one of the most controversial tests with respect to its legality and constitutionality. The test is conducted by injecting 3 grams of sodium pentathol dissolved in 3000 ml of distilled water and the solution is administered intravenously along with 10% of dextrose over a period of three hours with the help of a qualified anaesthetist.[5]
It has a biological or rather a neurological impact on the brain thereby creating an ‘intoxicated like’ or ‘incapacitated’ state of the human body. When the right dosage is administered, there is just enough neural inhibitory effect making the accused incapable of cognition. This state of the human brain is very vulnerable and makes the accused more suggestive and less willing. This vulnerability can then be leveraged to gather the confession of the accused and all the other relevant evidence.
What makes Truth Serum unconstitutional?
When the accused is put in a state as vulnerable and incapacitated as this, he is bound to pass statements that could lead to his conviction, however against his will. As aforementioned, Art. 20(3) is bestowed only upon the accused, by giving him the right to remain silent and not give self-incriminating evidence against himself unwillingly or out of compulsion or use by use of force.
Now, despite there being many a development in the field of science, medicine and technology, which makes it very convenient to battle crime, it also becomes extremely important to analyse the cost at which it comes. What if the use of such developments come at the cost of the very pillars upon which the Constitution of India is built; the laws that are respected and abided by the people of this country?
It is to be noted that only an accused can avail the protection of article 20(3) and that too if, and only if, he is compelled to be a witness against himself[6]. Every country, having adopted natural law, gives to their citizens a right to fair trial in criminal offences.
The term self-incrimination has a very broad scope. However, for the purpose of specificity, the judiciary has narrowed down and interpreted that the evidence is testimonial in nature. To put it simply, an accused is protected under Article 20(3), only for those evidence that is communicative or testimonial and consensual in nature. He or she is not protected under the same for other evidence such as DNA, etc.
An accused can refuse to give communicative evidence or testimonies against himself, but cannot deny the collection of other circumstantial evidence such as blood samples, fingerprints, etc…Only the accused can gain immunity from this Article. No other witness, who isn’t an accused can make use of this immunity.
Should Narcoanalysis be validated?
It can be opined that the provisions in the Constitution of India or any legal statutes of the country, should merely protect the citizens and that such protection should not come at the stake of the quest for truth; especially in criminal offences. It is an indisputable fact that the sole prerogative of the laws that are formulated is to ensure the well-being of the citizens. The same can be achieved by putting an end to or curbing the rate of crime. And if one can achieve this by the usage of force against the accused, then the same should be accepted and validated as this action is carried out for the greater good of the society.
Adding on, Narcoanalysis has been upheld many a time in the High Courts as well as the Supreme Court, yet the matter still remains inconclusive. In the case of Selvi v. State of Karnataka[7], J Majage pointed out Sec 53(1) of the CrPC which permits the use of reasonable force to obtain facts and evidence which might be material to the case. He then also pointed out Sec 39 of the statute stating that it is the duty of every citizen to aid in furnishing the information regarding offences.
Moving on, in the case of State of Bombay v. Kathi Kalu Oghad[8] which was also followed in Nandini Satpathy v. P.L. Dani and Anr.[9] it was held that “compulsion is a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore, extorted”.
Furthermore, the self-incriminating possibility of Narcoanalysis can be considered only depending on the statements passed after the administration of the drug and not before. Hence, if the accused does not give any self-incriminating statement, then his right is not violated. Therefore, nothing can be ascertained before conducting the test.
Along with this, there are various other protections available to the accused in terms of admissibility of the evidence under the Indian Evidence Act and as well as in other matters through the Criminal Procedure Code as stated above. Therefore, even if the accused passes a self-incriminatory statement he can be given immunity, and such statements need not be admissible in court. At the same time, Narcoanalysis should be commonized as those statements that are not self-incriminatory can aid in fast-tracking the investigation process.
Lastly, enough reasons have been stated as to why it becomes absolutely important, in today’s date and time, for the legal system to adapt to newer technologies and scientific advancements which could ease the process of justice delivery, because “Justice delayed is justice denied”.
The need of Art 20(3) can be understood as it might have been intended to protect the interests of the accused. However, if the protection of interests of one accused comes at the stake of the harmony and well-being of the entire country and acts as a hindrance in achieving the sole objective of the Judiciary, that is truth and justice, then it becomes imperative to rethink and re-examine the position of law and the core intentions behind the same. Therefore, it is high time that the Judiciary becomes more welcoming to such technologies and scientific advancements, for a more effective and efficient legal system.
Bibliography:
Article 20 (3) of Constitution of India And Narco Analysis
- Article 20 (3) of Constitution of India And Narco Analysis
- Constitutionality of Narco Analysis and Polygraph Examination
- Constitutional and Evidentiary validity of New Scientific Tests
- The Concept of Narcoanalysis in view of Constitutional Law and Human Rights
- Constitutionality of Narco Analysis in India
- Narcoanalysis in Law Enforcement
- Supreme Court judgment on polygraph, narco-analysis & brain-mapping: A boon or a bane
[1] The author is a second-year BBA.LLB (Hons.) student at Faculty of Law, PES University
[2] Philosophy propounded by Jeremy Bentham and John Stuart Mill
[3] Nandini Sathpathy v. P.L. Dani & Anr., AIR 1978 SC 1025 at 1032.
[4] A.S. Dalal and Arunava Mukherje, Constitutional and Evidentiary Validity of new scientific tests, Vol. 49, The Indian Law Institute, 529, 529 (2007)
[5] Preparation is covered by US Patents 2153729 (1939), 2876225 (1959)
[6] Dastagir v. State of Madras, AIR 1960 SC 756
[7] (2010) 7 SCC 263
[8] AIR 1961 SC 1808
[9] AIR 1978 SC 1025
