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Narcoanalysis: A Dangerous Mirage

The police are increasingly relying on narcoanalysis tests to gather evidence and the courts are accepting them as mere investigative tools. However, these tests are unrealiable. They are capable of inducing false confessions from innocent persons and violate crucial constitutional protections.

Commentary

Narcoanalysis: A Dangerous Mirage

The police are increasingly relying on narcoanalysis tests to gather evidence and the courts are accepting them as mere investigative tools. However, these tests are unrealiable. They are capable of inducing false confessions from innocent persons and violate crucial constitutional protections.

SOUTH ASIA HUMAN RIGHTS DOCUMENTATION CENTRE

E
ndorsed as a more palatable and scientific alternative to “thirddegree” interrogation methods, narcoanlaysis tests are being increasingly used by the police in India to gather evidence [David Brown 2006]. Before we greet this as a great and humane advance in criminology, we should pause to consider its questionable track record or effectiveness and the real violence it does to the notion of a right against selfincrimination, right to privacy and to due process of law. On balance, narcoanalysis’ questionable benefits are outweighed by its very real and pernicious effects on the human beings subjected to it.

Narcoanalysis is a process in which a person is injected with barbiturates, a combination of drugs sometimes referred to as “truth serum” in movies and the media, in order to induce a dissociated state. This semi-conscious state is said to facilitate interrogation by releasing repressed feelings, thoughts or memories.1 Ideally, narcoanalysis is performed in a hospital under the supervision of a psychoanalyst and anaesthetist; the interrogation function of the police is delegated to the psychoanalyst who is provided with a detailed questionnaire [Reddy 2007].

Often touted by the authorities in court filings or in the media as being part of state of the art science, this method of investigation has been used consistently by Indian police in the recent past. For example, the Bangalore Forensic Science Laboratory has been conducting such tests since 2000 [Jesani 2007]. In June 2002, a narcoanlaysis test was performed on seven suspects in the Godhra carnage probe in Vadodara [Misra 2002]. In December 2003, the test was conducted on Abdul Karim Telgi in Karnataka pursuant to an order from a special court in Pune in connection with the Telgi stamp paper case [Katakam 2007]. More recently, the primary suspects in the Nithari murder case were examined under the influence of a truth serum in a Gandhinagar hospital [Lakshman 2007].

‘Garbage In, Garbage Out’

Simply put, narcoanalysis tests are unreliable. This has been well known for many decades. Studies and reviews from the 1940s and 1950s (and some dating back to the 1920s) in the US and UK demonstrated two major shortcomings of narcoanalysis. First, questioning suspects after injecting them with truth serum is ineffective on individuals who are determined to lie to investigators [Inbau 1954]. According to one reviewer, “criminal suspects, while under the influence of barbiturate drugs, may deliberately withhold information, [or] persist in giving untruthful answers….” [MacDonald 1954:288].

Second, the most pernicious inadequacy of narcoanalysis may be the risk of false confessions from innocent persons. Because the subject is in a highly suggestible state when under the influence of truth serum drugs, he or she is prone to give false or misleading answers to questions, especially if they are improperly framed (ibid: 283).2 Even some commentators favourably disposed to narcoanalysis admit the possibility that an improperly framed question may extract a confession from an innocent person, and that “unless supporting evidence is obtainable, the reliability of results of “truth serum” tests are [sic] open to serious question” [Muehlberger 1951]. “The likelihood of a gross miscarriage of justice through undue dependence upon unreliable statements [made while under narcoanalysis] is entirely too great” (ibid).

Unfortunately, some courts in India have not given due regard to the well-recognised limitations of narcoanalysis and have instead held that because such tests are “scientific”, and so long as they are conducted in the presence of an “expert”, they are permissible.3 In their zeal to appear at the forefront of forensic science4 (never mind that narcoanalysis has a pedigree almost a century old), these courts have failed to appreciate the dangers these tests represent.

Right against Self-incrimination

Article 20(3) of the Indian Constitution states that “no person accused of an offence shall be compelled to be a witness against himself”. This provision operates as a shield against the compulsion of testimony. Section 161(2) of the Code of Criminal Procedure, 1973 (CrPC) provides similar protection to the accused: a person is “bound to answer truly all questions” while being examined by the police except for those questions that “would have a tendency to expose him to a criminal charge or to a penalty or forfeiture”. The protection against self-incrimination is available to those who have already been charged with the commission of an offence as well as suspects who have not been charged with anything.5

“To be a witness” has been interpreted by the Supreme Court to mean “imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise”.6 Further, “giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification” does not amount to self-incrimination because such acts do not constitute testimony and furnishing such samples does not amount to being a witness.7 The court reasoned that because such identification evidence, unlike oral or written testimony, does not

Economic and Political Weekly July 14, 2007 “have the tendency of incriminating the accused” and is relatively immutable, the ordinary protections against self-incrimination do not apply.8

Informed consent is intrinsically linked to the exercise of the right against selfincrimination. In Ramchandra Ram Reddy vs Maharashtra,9 the Bombay High Court examined the issue of “whether requiring the accused to undergo these tests against his will would amount to compelling him to be a witness against himself”. The court concluded that “…such statement will attract the bar of Article 20(3) only if it is inculpating or incriminating to the person making it. Whether it is so or not can be ascertained only after the test is administered and not before.” Further, the court was of the view that there are sufficient safeguards under the CrPC, Indian Evidence Act and the Constitution to prevent the admission of an incriminating statement in a court of law after such a statement is made under narcoanalysis. In Smt Selvi vs Karnataka, the Karnataka High Court took an extremely narrow view of “compulsion” and held that the only pain caused is from the injection prick and therefore, there is no compulsion.10 The Karnataka High Court in Selvi, like the Bombay High Court in Ramchandra, also opined that it was impossible to know beforehand whether the statements made under narcoanalysis would be exculpatory or inculpatory, and therefore it would be “premature” to make a ruling with respect to the constitutionality of narcoanalysis under Article 20(3).11

In effect, by classifying the concerns relating to consent as “premature”, the high courts failed to appreciate the problematic aspects of an involuntary statement made under a state of drugged semiconsciousness. Most troublingly, the lack of consent of the subject of narcoanalysis appears to be a non-issue for the high courts, which seem to take comfort in images of scientific or medical probity and clinical competence. But even in cases of medical procedures and scientific experiments on human subjects, consent of the subject is imperative. The image that should resonate in the minds of members of the court is that of the unwilling subject forcibly strapped down to a gurney, fighting and shouting all the way, until the syringe is plunged into his arm, the barbiturate is injected into the blood stream, and the drug-induced torpor overcomes his obvious resistance. Such administration of drugs against a subject’s will amounts to “compulsion”, defined in the English law dictionary as “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”12 (emphasis added).

Further, though some of the courts’ decisions appear to leave open the possibility that the accused may challenge the admissibility of statements made under narcoanalysis at a later date (i e, during trial), that is cold comfort. The approach of the high courts fails to recognise the risk of innocent people falsely inculpating themselves under narcoanalysis. It also fails to comport with Indian constitutional and statutory protections that extend the prohibition against compelled testimony backward in time far before the beginning of trial: “the protection afforded to an accused insofar as it is related to the phrase “to be a witness” is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him.”13

What is more, the logic that we do not know whether a statement will be inculpatory or exculpatory before we ask questions under narcoanalysis is seriously flawed. That same logic would never be applied to questioning of a subject without the influence of drugs. Under such circumstances, the police could ask all manner of questions about a crime, and the subject of the questioning could refuse to answer on the basis of possible self-incrimination. Administration of the truth serum drugs chemically alters this sort of exchange, with the subject of questioning no longer able to make a considered judgment about whether what he is about to say is likely to incriminate him. The truth is no one knows what will come out of a suspect’s mouth if questioned under the influence of barbiturates; it could be inculpatory, exculpatory, or sheer nonsense. That should have been enough to give the courts pause.

Lastly, the evidence gathered based on the results of a narcoanalysis test can be admitted as corroboratory evidence even if the actual words the accused uttered under narcoanalysis are not admissible. As lawyer Sriram Lakshman observes, “this is, arguably, a roundabout way of subverting the right to silence – acquiring the information on where to find the weapon from the subject when, in his right senses, he would not turn witness against himself” [Lakshman 2007]. Finally, while the results of the narcoanalysis tests conducted may not be admitted in court, the media broadcast of the results of the test conducted on Abdul Telgi, for example, has created a prejudice and vitiated the guarantee of a fair trial.

In sum, the courts’ rulings have obliterated vital constitutional protections by so burdening the right to remain silent as to render it a dead letter.

Right to Life and Personal Liberty

Subjecting persons to injections of mindaltering chemicals against their will is a violation of their right to privacy and may even violate their right to health.

In this regard, it must be remembered that the drugs used in narcoanalysis are not simple over-the-counter medicines, but powerful drugs. Indeed, one of the most commonly used truth serum substances – sodium pentathol14 – is the same substance that in larger dosages is used to induce a deep coma-like state for executions by lethal injection in the US.15 Indeed, a large dose of this drug is lethal.16 Thus, we should not be overly quick in dismissing the health risks of narcoanalysis, especially if the drugs are not properly administered by a trained professional.17

Though the Kerala High Court minimised the health risks of being injected with barbiturates by comparing narcoanalysis to medical procedures,18 that comparison is inapt. The risks undertaken by a medical patient undergoing tests or even surgery are voluntary and intended by the doctor to ultimately heal the patient or at least relieve him of suffering. Obviously, the same cannot be said of the injection of drugs into a healthy individual for nonhealth related purposes.

But even if administered correctly, narcoanalysis raises profound privacy concerns. Although right to privacy is not expressly mentioned in the Constitution, the SC has recognised that it falls within the ambit of the “personal liberty”19guaranteed under Article 21 of the Constitution.20

Narcoanalysis raises Article 21 concerns by virtue of its invasion of the body and mind, which constitutes an invasion of privacy. The test directly intrudes on the mental processes of the subject, who lacks control over the questioning and his answers. There is a risk that the unconscious mind may reveal personal information, which is irrelevant to the investigation though highly embarrassing or even damaging to the subject, his family or his livelihood. It is therefore imperative to establish standards of

Economic and Political Weekly July 14, 2007

confidentiality and other safeguards [Silving 1956], as an individual’s privacy may be violated by the state only by a “procedure established by law”.21 No such safeguards exist in India and therefore narcoanalysis amounts to a violation of the right to privacy if performed without consent.

It is no answer to say that an evidentiary rule of exclusion would keep statements the person makes while in a drugged stupor inadmissible in court. This does nothing to prevent the initial violation of privacy, which occurs when the subject of narcoanalysis first blurts out the information. Nor does it do much to protect the rights of the innocent and wrongly accused who may never be tried for anything at all. What is the remedy for their violation of privacy?

Regrettably, in Rojo George vs Deputy Superintendent of Police, the Kerala High Court held that narcoanalysis test “[does] not amount to deprivation of personal liberty or intrusion into one’s own privacy”.22 Notably, the court did not fully substantiate its position and declined to address the intrusion into mental privacy. The court reasoned that because section 39 of the CrPC imposed a duty to furnish information to the police regarding crimes, there is no right to privacy to withhold such information. But this misunderstands the nature of the privacy concerns at issue here. The court imagined narcoanalysis as a fine scalpel to extract specific information from a subject. In actuality, the inducement of a barbiturate haze is more akin to a bludgeon, which may produce some information relevant to the investigation, but is also likely to produce irrelevant and perhaps imagined disclosures of a highly personal nature [MacDonald 1954].

Ill-considered Judicial Sanction

Narcoanalysis remains relatively unregulated and poses a threat of abrogating fundamental rights. While the high courts have dispensed with the requirement of consent of the subjects, they have also declined to exercise judicial oversight over the conduct of the test. In Rojo George,23 the Kerala High Court held that narcoanalysis does not require judicial sanction because it is a “recognised test for an effective investigation”. In Selvi,24 the Karnataka High Court erroneously conflated the conducting of the test with the collection of evidence, even though the CrPC envisages investigation by a police officer and not a psychoanalyst or other physician.

It seems that the high courts have been overawed by the government’s arguments concerning the reliability, safety and usefulness of narcoanalysis, and have not examined the matter critically. Encouraged by the government, the courts have made the questionable intuitive leap from “scientific” validity to “legal” validity with little regard for the assumptions being made. Though the judiciary may be excused for not having a detailed understanding of the science involved, it should use its faculties to satisfy itself that the rights of Indian citizens are being respected.

Narcoanalysis tests undermine the right against self-incrimination and have the potential to adversely affect the fairness of a trial. Widespread use of narcoanalysis is likely to foster laxity in the investigation standards of the police force, who may increasingly rely on the seemingly facile nature of the test rather than conduct more pedestrian forensic investigations.

There seems to be a consensus among the high courts that narcoanalysis may be used as an investigative tool only and not necessarily as evidence directly admissible in court. This is of little solace, however, because corroborative evidence uncovered through narcoanalysis may very well be admissible, providing a road map for an end run around the right against self-incrimination.

EPW

Email: rnairsahrdc@gmail.com

Notes

1 Ramachandra Ram Reddy vs State of Maharashtra, Criminal Writ Petition No 1924 of 2003.

2 Editorial, ‘Medicine and the Law: Cross Examination under Anaesthetic’, Lancet, Vol 106, November 1928, p 990, as cited in MacDonald (1954).

3 Rojo George vs District Superintendent, 2006(2) KLT 197.

4 The Kerala High Court was concerned that “the techniques used by the criminals for commission of crime are very sophisticated and modern”, and therefore non-conventional police procedures including narcoanalysis are necessary in some cases, ibid, para 15.

5 Nandini Satpathy vs P L Dani AIR 1978 SC 1025; Kharak Singh vs State of Uttar Pradesh AIR 1963 SC 1295.

6 State of Bombay vs Kathi Kalu Oghad AIR

1961 SC 1808. 7 AIR 1961 SC 1808. 8 AIR 1961 SC 1808. 9 Criminal Writ Petition No 1924 of 2003,

decided on March 5, 2004. 10 2004(7) KarLJ 501. 11 2004(7) KarLJ 501. 12 Earl Jowitt, Dictionary of English Law, quoted in Smt Selvi vs State of Karnataka 2004(7) KarLJ 501.

13 M P Sharma vs Chandra 1954 AIR 300, 1954 SCR 1077.

14 Smt Selvi vs Karnataka 2004(7) KarLJ 501.

15 Morales vs Hickman, 438 F 3d 926 (9th Cir 2006).

16 Morales vs Hickman, 415 F Supp 2d 1037, 1047 n 16 (ND Cal 2006).

17 There is also the related issue of whether health professionals should even be participating in narcoanalysis. It is not clear how such participation is consistent with the Hippocratic oath.

18 Rojo George vs Deputy Superintendent of Police 2006(2) KLT 197.

19 Subba Rao J (minority judgment) in Kharak Singh vs State of Uttar Pradesh AIR 1963 SC 1295.

20 Govind vs State of Madhya Pradesh AIR 1975 SC 1378; R Rajagopal vs State of Tamil Nadu AIR 1995 SC 264; People’s Union for Civil Liberties vs Union of India AIR 1991 SC 207.

21 People’s Union for Civil Liberties vs Union of India AIR 1991 SC 207.

22 Rojo George vs Deputy Superintendent of Police 2006(2) KLT 197.

23 2006(2) KLT 197.

24 2004(7) KarLJ501.

References

Brown, David (2006): ‘Some Believe ‘TruthSerums’ Will Come Back’, Washington Post, November 20.

Inbau, Fred (1950): Self Incrimination: What Can an Accused Person Be Compelled To Do?, Springfield, Ill., USA: C C Thomas, 1950, p 69, cited in John M MacDonald, ‘Narcoanalysis andCriminal Law’,American Journal of Psychiatry, Vol 111, No 4, October 1954, pp 283-84, available at http://ajp.psychiatryonline.org/cgi/ reprint/111/4/283.

Jesani, Amar (2007): ‘Medical Professionals and Interrogation: Lies about Finding the ‘Truth’’,Indian Journal of Medical Ethics, Vol III, No 4, October-December 2006, available at www.ijme.in/144ed116.html (last visited on May 29, 2007).

Katakam, Anupama (2007): ‘The Truth Serum Trial’, Frontline, February 28-March 12, 2004, Volume 21, Issue 05) available at http:// www.hinduonnet.com/fline/fl2105/stories/ 20040312004303900.htm (last visited on March 28, 2007).

Lakshman, Sriram (2007): ‘Narcoanalysis and Some Hard Facts’, Frontline, May 18.

MacDonald, John M (1954): ‘Narcoanalysis and Criminal Law’, American Journal of Psychiatry, Vol 111, No 4, pp 283-88.

Misra, Leena (2002): ‘Narcoanalysis Gives Some Leads in Godhra Case’, Times of India, July 8.

Muehlberger, C W (1951): ‘Interrogation under Drug Influence: The So-called ‘Truth Serum’ Technique’, Journal of Criminal Law, Criminology and Police Science,Vol 42, No 4, November-December, pp 517, 524, available at http://www.jstor.org.

Reddy, M Sivananda (2007): ‘Narcoanalysis and Truth Serum’, Criminal Investigation Department of Andhra Pradesh, available at www.cidap.gov.in/documents/narcoanalysis %20and%20truth%20serum_129200522355 %20PM.pdf (last visited on May 29, 2007).

Silving, Helen (1956): ‘Testing the Unconscious in Criminal Cases’, Harvard Law Review, 69 Harv L Rev 683 (1956).

Economic and Political Weekly July 14, 2007

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