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Article 20 (3) of Constitution of India And Narco Analysis

Written by: Sehnaz Ahmed - B.A.LL.B (Hons.) – IV _ Year, Dr. RML National Law University, Lucknow.
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In any criminal investigation, interrogation of the suspects and accused plays a vital role in extracting the truth from them. From time, immemorial several methods, most of which were based on some form of torture have been used by the investigating agencies to elicit information from the accused and the suspects. With the advancement of science and technology, sophisticated methods of lie detection have been developed which do away with the use of “third degree torture” by the police. The scientific tools of interrogation namely- the Lie detector or the Polygraph test, the P300 or the Brain Mapping test and the Narcoanalysis or the Truth Serum test are the main three tests that have recently been developed for extracting confessions. These psychoanalytical tests are also used to interpret the behaviour of the criminal (or the suspect) and corroborate the investigating officers’ observations.

However, legal questions are raised about the validity of tests like Narco Analysis, with some upholding its validity in the light of legal principles and others rejecting it as a blatant violation of constitutional provisions. It has been alleged that Narco Analysis is a blatant violation of the Article 20(3) of the Indian Constitution. However, in this age of ever increasing crime rate, such tests often render a lot of help to the investigation agencies and hence, it is high time to blend Article 20 (3) with the Narco Analysis.

First, let us understand what Narco Analysis is and how is it conducted. This will help us to decide whether such tests actually violate Article 20 (3). In India at Forensic Science Laboratories in Bangalore and Gujarat, Narco Analysis is conducted by injecting 3 grams of sodium pentothal dissolved in 300 ml of distilled water and this prepared solution is administered intravenously along with dextrose over a period of 3 hours with the help of anaesthetist. Obviously this test has some invasion on the body. The rate of administration is so controlled to drive the suspect slowly into the state of hypnotic trance. The ECG and blood pressure are monitored continuously throughout the testing procedure. The revelations made during the hypnotic trance are recorded both in video and audio cassettes. The questions are designed carefully and are repeated persistently in order the ambiguities during drum interrogation. The report prepared by the experts is useful in the process of collecting the evidence. A person is able to lie by using his imagination. In the Narco Analysis Test, the subject enters into a “twilight” stage i.e. a stage between consciousness and unconsciousness. In this state, it becomes difficult for him to lie and his answers would be restricted to facts he is already aware of. Prior to the test, Court’s permission and written consent of subject is secured which are mandatory for conducting the test. The procedure is explained to the subjects. The test is conducted only in the presence of forensic and medical experts.

Next, it becomes imperative to analyse Article 20 (3) of the Indian Constitution. Clause (3) of Article 20 declares that no person accused of an offence shall be compelled to be a witness against himself.

This provision may be stated to consist of the following three components:
1. it is a right pertaining to a person accused of an offence
2. it is a protection against compulsion to be a witness; and
3. it is a protection against such compulsion resulting in his giving evidence against himself.

The privilege under clause (3) is confined only to an accused i.e. a person against whom a formal accusation relating to the commission of an offence has been levelled which is in the normal course may result in the prosecution. A person against whom a first information report has been recorded by the police and investigation has been ordered by the Magistrate can claim the benefit of the protection.

Further, the guarantee in Article 20 (3) is against the compulsion to be ‘a witness’. In State of Bombay v. Kathi Kalu Oghad a Bench of the Supreme Court consisting of eleven judges held that: “It is well established that clause (3) of Article 20 is directed against self-incrimination by the accused person. Self-incrimination must mean conveying information based upon personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in the controversy, but which do not contain any statement of the accused based on his personal knowledge.” The third component of Article 20 (3) is that it is a prohibition only against the compulsion of the accused to give evidence against himself. In Kalawati v H.P. State , the Supreme Court held that Article 20 (3) does not apply at all to a case where the confession is made by an accused without any inducement, threat or promise.

Narco Analysis in the light of Article 20(3): The discussion on Article 20 (3) spells out three requirements which must be met with in order to claim protection under Article 20 (3). If any of these requirements is not met with, Article 20 (3) cannot be invoked. If Narco Analysis is carried out on an accused, it definitely fulfils the first requirement of Article 20 (3). However, the question is whether subjecting a suspect to such a test also fulfils the requirement of Article 20 (3). In the case of State of Andhra Pradesh v. Smt. Inapuri Padma, the Court by ordering a few suspects to undergo a Narco Analysis test held that the question of putting the test of testimonial compulsion in case of suspects does not arise.

Hence, I feel that if a person is suspected to have some information regarding the commission of an offence, there should be no prohibition on conducting a Narco Analysis test on him as the protection under Article 20 (3) is available only to a person accused of an offece. Another requirement of Article 20 (3) is that there should be no compulsion on the accused to give testimony against him. However, in Narco Analysis test, the question of compulsion does not arise because the prior consent of the person who is supposed to undergo such a test is always taken.

In fact, the Supreme Court in State of Bombay v Kathi Kalu Oghad, held that there is no compulsion when a police officer, in investigating a crime against, a certain individual, asks him to do a certain thing. The fact that a person was in police custody when he made the statement is not a foundation for an inference that he was compelled to make the statement. The mere questioning of an accused by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not compulsion. Considering, all these we can easily conclude that Narco Analysis does not violate Article 20 (3) to the extent that the person undergoing such a test is not compelled to do so, rather it is done with the consent of the person who has full knowledge of such a test.

The third requirement of Article 20 (3) is that the there should be compulsion to give evidence against oneself. Only incriminatory statements are hit by Article 20(3). Whether a statement is incriminatory or not can be ascertained only after the test is conducted and not before it. Hence, I do not see any reason to prohibit such a test because there are enough protections available under the Indian Evidence Act, under Criminal Procedure Code and Article 20(3), to prevent inclusion of any incriminating statement if one comes out after administration of the test. By conducting Nacrco Analysis, the investigating agencies might discover some information which will help them in the investigation of the crime and thus find out the true culprit. In case, during the test, the accused makes a statement that is incriminatory that need not be made admissible in the Court as it is against Article 20 (3), but the rest of the information can definitely be used by the investigating agencies to solve the case. The above discussion very clearly suggests that Narco Analysis test can be conducted without violating Article 20 (3).

The Indian Courts have so far refused to admit the Narco Analysis as evidence, but Narco Analysis is being carried out by the investigators. The reason is that although confession made to the police or in the presence of police is not admissible in Courts, the information is admissible by which an instrument or object used in commission of crime is discovered. This is clear from the wording of Section 27 of the Indian Evidence Act, 1872. Section 27 of the Indian Evidence Act, 1872 is founded on the principle that if the confession of the accused is supported by the discovery of a fact, the confession may be presumed to be true, and not to have been extracted. It comes into operation only: (i) if and when certain facts are deposed to as discovered in consequence of information received from an accused person in police custody; and (ii) if the information relates distinctly to the fact discovered. If the self incriminatory information given by an accused person is without any threat that will be admissible in evidence and will not be hit by Article 20 (3).

Section 156 (1) of the Code of Criminal Procedure which reads “Police officer's power to investigate cognizable cases” states that any officer in charge of a police station without the order of a Magistrate can investigate any cognizable case which a Court has power to inquire into or try under the provisions of Chapter XIII. “Investigation” as defined in Section 2 (h) of Cr.P.C includes all the proceedings under the Code of Criminal Procedure for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by a Magistrate in that behalf. Thus, collection of evidence by Police Officer is permitted under law. Conducting Narcoanalysis Test on accused is in the process of such evidence by the investigating agency. The Karnataka High Court also made a similar observation in the case of Selvi vs State of Karnataka by Koramangala Police Station. This provision is also constitutionally valid.

Let us now understand the approach of the judiciary towards Narco Analysis. In the unreported case of Ramchandra Ram Reddy v The State of Maharashtra, the Court posed with the question whether P-300, Lie Detector and Narco Analysis tests are violative of Article 20(3) observed:
“The question which falls for consideration therefore, is whether such statement can be forcibly taken from the accused by requiring him to undergo the Truth Serum Test against his will. It will be seen that such statement will attract the bar of Article 20(3) only if it is inculpating or incriminating the person making it. Whether it is so or not can be ascertained only after the test is administered and not before. In our opinion therefore, there is no reason to prevent administration of this test also because there are enough protections available under the Indian Evidence Act, under Criminal Procedure Code and under the Constitution (Article 20(3), to prevent inclusion of any incriminating statement if one comes out after administration of the test…In so far as the third test (Narco Analysis) is concerned enough protection exists, recourse to which can be taken if and when the investigating agency seeks to introduce such statement as evidence.”
The Court dismissed the petitions filed against these tests and held that these tests do not compel the accused or witness to incriminate himself and there is therefore no question of violation of Article 20(3) of the Constitution.

In Smt. Selvi and Ors v. State by Koramangala Police Station , the Court observed that the field of criminology has expanded rapidly during the last few years, and the demand for supplemental methods of detecting deception and improving the efficiency of interrogation have increased concomitantly. Narco analysis for criminal interrogation is a valuable technique, which would profoundly affect both the innocent and the guilty and thereby hasten the cause of justice. Further observed that enough protections exist to which recourse can be had by accused if and when the investigating agency seeks to introduce into evidence the information or statement obtained under Narco-analysis Test, if the same is found inculpatory or confession. That apart, statement or information by accused in the said test may even show their innocence or may lead to discovery of a fact or object material in the crime. If so, it is not at all hit by Article 20(3).

In the case of Rojo George v. Deputy Superentendent of Police, the Court while allowing a Narco Analysis test observed that in present days the techniques used by the criminals for commission of crime are very sophisticated and modern. The conventional method of questioning may not yield any result at all. That is why the scientific tests like polygraph, brain mapping, narco analysis, etc. are now used in the investigation of a case. When such tests are conducted under strict supervision of the expert, it cannot be said that there is any violation of the fundamental rights guaranteed to a citizen of India.

In Santokben Sharmanbhai Jadeja v. State of Gujarat , the Court while upholding the order for conducting a Narco Analysis on the accused Santokben Sharmanbhai Jadeja, observed that “when after exhausting all the possible alternatives to find out the truth and nab the criminal/accused and when it is found by the prosecuting agency that there is no further headway in the investigation and they are absolutely in dark, there is a necessity of such a test. On the basis of revelations and/or the statement recorded while conducting/performing the Narco Analysis Test, prosecuting agency may have some clues which would further help and/or assist the Investigating Agency to further investigate the crime and at this stage, there will not be any bar of Article 20(3) of the Constitution of India and merely conducting/performing of a Narco Analysis Test on the accused, the protection guaranteed under Article 20(3) of the Constitution of India is not violated. As stated above, only and only at the stage when the prosecuting agency is likely to use such statement as evidence and if it is inculpating and incriminating the person making it, it will attract the bar of Article 20(3).”

The Court further observed that various provisions under the Criminal Procedure Code right from Sections 156 to 159 and other related provisions, collection of evidence by the police officer is permitted under the Law. Conducting the Nsrco Analysis test on accused is to be considered as process of collection of such evidence by the Investigating Agency. The Investigating Agency cannot be prevented to interrogate the accused at the stage of investigation and restraining the Investigating Agency to further investigate the crime through the aforesaid two tests would tantamount to interfere with the right of the Investigating Agency to investigate the crime of which it is statutorily authorized.

In Dinesh Dalmia v State, the Court observed that where the accused had not allegedly come forward with the truth, the scientific tests are resorted to by the investigation agency. Such a course does not amount to testimonial compulsion. From the above discussion, it is very evident that conducting a Narco Analysis test does not violate Article 20 (3) per se. Only after conducting the test, if the accused divulges information which is incriminatory, then it will be hit by Article 20(3). Other information divulged during the test can help the investigation. Thus, there is no reason why we should prohibit such a test on grounds of unconstitutionality.

In fact, the revelations made during the Narco analysis have been found to be of very useful in solving sensational cases of Mumbai serial train blasts, blasts at Delhi, Malegoan and more recently in Hyderabad and in various other sensational cases of National and International ramifications. In most of these cases, the revelations made have led to the discovery of incriminating information’s favouring probative truth and consequently recoveries have been made in large number of cases U/s 27 of IEA. Thus, Narco Analysis is proving to be a useful tool in the field of criminal investigation. However, the legal hurdles in use of this technique should be removed first before its application. It is high time that we blend this test with Article 20(3) in such a manner that no questions are raised as to its constitutional validity. For this purpose, it is essential that the Union Government should come out with certain guidelines which are to be strictly followed while conduction such a test.

1. The permission of the Court and the written consent of the person undergoing such a test should be made compulsorily.
2. The person who is supposed to undergo such a test must be given all the necessary details about the test before he is asked to sign the consent form.
3. Control and supervision of the forensic laboratories should be made under the autonomous bodies like NHRC and the States Human Rights Commissions.
4. NHRC has suggested that at the time of polygraph test a forensic psychologist, a psychiatrist and an anaesthetist should remain present. Similar team can be directed to remain present at the time of Narco Analysis with the additional safeguard of entire proceeding audio and videotaped.

In conclusion, I would like to quote, Dr. R.E. House’s address to the First Annual Meeting of the Eastern Society of Anaesthetists in 1925 about the role of his scopolamine tests:
" ... Society has the right to be protected against the criminal, and all of society's rights are manifestly superior to those of the criminal. There can be no gainsaying the fact that a suspect is either innocent or guilty, and no one knows the truth better than does the suspect himself. It, therefore, stands to reason, that where there is a safe and humane measure existing to evoke the truth from the consciousness of the suspect, that society is entitled to have the truth........... If society has the right to take property, liberty, and life for its protection, then society has the right to make, by trained men, the use of truth serum legal. The framers of the Bill of Rights believed the rights of society were paramount to the rights of the criminal. It was an instrument for the protection of the innocent and not intended for the acquittal of the guilty".

*Satyedra K. Kaul and Mohd. H. Zaidi, Narco Analysis, Brain Mapping and Lie Detector Tests in Interrogation of Suspects, 1st Edn (2008) Pg 531
*Satyedra K. Kaul and Mohd. H. Zaidi, Narco Analysis, Brain Mapping and Lie Detector Tests in Interrogation of Suspects, 1st Edn (2008) Pg 482
*Delhi Judicial Service Association v State of Gujarat (1991) 4 SCC 406, 431
*M.P. Sharma v Satish Chandra AIR 1954 SC 300
*AIR 1961 SC 1808
*AIR 1953 SC 131
*2008 Cri LJ 3992
*AIR 1961 SC 1808
*Ratanlal Ranchhoddas and Dhirajlal Keshavlala, The Law of Evidence, 22nd Edn (2006) Pg 438
*State of Bombay v Kathi Kalu Oghad AIR 1961 SC 1808
*Criminal Writ Petition No. 1924 of 2003
*2006 Cr.L.J. 2401
* Accessed on 10.11.08

The author can be reached at: - ph: 9984447071/9580548516 / Print This Article


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