NARCO ANALYSIS AND CONSTITUTIONAL IMPORTANCE.

SHIVANGI PORWAL
BBA.LLB-C
ROLL NO.16

Symbiosis Law School, NOIDA

Symbiosis International University, PUNE
In February Month, year 2015

Under the guidance of

Ms. Megha Chauhan
Faculty incharge

CERTIFICATE
The Project entitled NARCO ANALYSIS AND CONSTITUTIONAL IMPORTANCE.
submitted to the Symbiosis Law School, NOIDA for Forensic Science as part of Internal
assessment is based on my original work carried out under the guidance of Ms. Megha
Chauhan from February 5th to March 16th. The research work has not been submitted
elsewhere for award of any degree. The material borrowed from other sources and
incorporated in the thesis has been duly acknowledged. I understand that I myself could be
held responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate

Date:10th March,2015

Acknowledgement

I wish to express my deep sense of gratitude to all those people who helped me in this project
and greatly acknowledgment the suggestion of Ms. Megha Chauhan of SLS- NOIDA.

Date:16th March,2015

INDEX

1.

CERTIFICATE

2.

ACKNOWLEDGEMENT

3.

INDEX

4.

ABSTRACT

5.

INTRODUCTION

6.

LITERATURE REVIEW

7.

OBJECTIVE

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8.

RESEARCH METHODOLOGY

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9.

FINDINGS AND CONCLUSION

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10.

SUGGESTIONS

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11.

BIBLIOGRAPHY

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Abstract
In this article I have tried to discuss about constitutional validity of Narco Analysis Test under
Article 20(3) with reference to Judicial Pronouncements. Narco analysis test is used for the
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purpose of extracting truth from accused or any suspect. The aim of Narco Analysis test is to
detect the truth from criminals. Narco analysis is a scientific form of investigating tools. The
main object of Narco analysis test is to go in the root of truth as well as to reduce the criminal
behaviour in society. But today one of the biggest legal controversies which goes around the
Narco Analysis Test are its alleged violation of the fundamental rights against self
incrimination guaranteed under Article 20(3) of the Indian Constitution.

Introduction

The term Narco-Analysis is derived from the Greek word. Its meaning numbness or
"anaesthesia" or "torpor" and is used to describe a diagnostic and psychotherapeutic
technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which
mental elements with strong associated affects come to the surface, where they can be
exploited by the therapist (Jawale, 2014). The advancement of science has led to many great
and modern machines and methods. The need for quick methods of discovering truth along
with the impatience of man has had a great deal to contribute to this particular field of
forensic science.
The main provision regarding crime investigation and trial in the Indian Constitution is Art.
20(3). It deals with the privilege against self incrimination. The privilege against self
incrimination is a fundamental right under Art. 20(3) which embody this privilege read, No
person accused of any offence shall be compelled to be a witness against himself. Subjecting
the accused to undergo the test, as has been done by the investigative agencies in India, is
considered by many as a blatant violation of Art. 20(3). The application of Narco analysis test
involves the fundamental question pertaining to judicial matters and also to fundamental and
Human Rights.

Literature Review
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(Ahmed)In order to conduct criminal investigations and interrogations of the accused or the
suspects the ancient methods of torture and other such techniques have been outdone by the
scientific ways of interrogation, such as narco analysis, brain mapping etc. These scientific
methods are known as psychoanalytical tests and are used to interpret the behaviour of the
criminal/suspect and corroborate the investigating officers observation. But the validity of
these tests is challenged now and then as they are said to have been violating Article 20(3) of
the Indian constitution. As these tests stand to are self incriminating. The author has in this
article analysed Article 20 (3) and how laws and aspects of interpretation be adopted in a way
to have these tests validly incorporated in the constitution. This has been explained by the
help of certain cases.
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 selfincrimination 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 him. 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.
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.
(Verma) Narcoanalysis has been criticized by the author on the ground that it is not 100%
accurate. It has been found that certain subjects made totally false statements. It is often
unsuccessful in eliciting truth as such it should not been used to compare the statement
already given o the police before use of drug. It has been found that a person who has given
false information even after administration of drug. It is not much help in case of malingers
or evasive, untruthful person. It is very difficult to suggest a correct dose of drug for a
particular person. The dose of drug will differ according to will power, mental attitude and
physique of the subject. Successful narcoanalysis test is not dependent on injection. For its
success a competent and skilled interviewer is required who is trained in putting recent and
successful questions. Narcoanalysis test is a restoration of memory which the suspect had
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forgotten. This test result may be doubtful if the test is used for the purposes of confession of
crimes. Suspects of crimes may, under the influence of drugs, deliberately withhold
information or may give untrue account of incident precisely. Narcoanalysis is not
recommended as an aid to criminal investigation. In medical uses like in treatment of
psychiatric disorder the narcoanalysis may be useful. Unless the test is conducted with the
consent of the suspect it should not be used in criminal investigation.
(Constitutional Validity Of Forced Narco Analysis Law Essays, 2013). It is alleged that
Narco-analysis test is violative of his Fundamental Rights under Article 20(3) of the
Constitution of India, 1950. It guarantees protection against self incrimination. The Fifth
Amendment to the U.S. Constitution provides for the same privilege. This right is also
guaranteed by Article 14(3) (g) of the International Covenant on Civil and Political Rights,
1966.
The privilege that is granted under the constitution of India is with regards to all kinds of
disclosure. It has been granted as a right to not to answer any questions even in the court of
justice, and also that no one can compel a person to be his own witness, i.e. selfincrimination. This protection is against the accused to incriminate him under compulsion.
Self incriminatory testimony is to be of such a character that by itself it should have the
tendency of incriminating the accused, if not also of actually doing so. This privilege can be
enjoyed by a person accused of an offence who is being compelled to be a witness and such
compulsion will result in giving evidence against him. All the ingredients must co-exist
before the protection of the privilege under Article 20(3) can be claimed.
The Supreme Court is of the view, as held in Selvi & Ors v. State of Karnataka, that since the
underlying rationale of the right against self-incrimination is to ensure the reliability as well
as voluntariness of statements that are admitted as evidence, the compulsory administration
of impugned techniques violates such right. Results obtained by such tests bear a
testimonial character and thus they cant be admitted in evidence if they have been obtained
through the use of compulsion.
Unreliability of tests: the Supreme Court raised serious concerns about the validity, reliability,
and indeed usefulness of narcoanalysis, brain mapping, and polygraph tests. The Court
emphasised how each of the tests could lead to the discovery of false and even misleading
information. In questioning the scientific reliability of narcoanalysis, the Court for example
stated: Some studies have shown that most of the drug-induced revelations are not related to
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the relevant facts and they are more likely to be in the nature of inconsequential information
about the subjects personal lives. The Court also noted that some subjects of narcoanalysis
can become extremely suggestible to questioning while others might concoct fanciful
stories.
Right against self incrimination: rights against self- incrimination as given in Article 20(3) of
the Indian Constitution, according to which, No person accused of an offence shall be
compelled to be a witness against himself
Substantive due process rights: High courts did not probe into the matter of right to privacy
that is involved in narco analysis and the violation of such a right. But the Supreme Court
pointed out this right of an individual that has been guaranteed under Article 21 of the
constitution of India and has expressly said that such tests violates an individuals right to
privacy, and those that did only made blanket assertions that the right is not absolute or that
narcoanalysis and other tests did not infringe on the right
Exception open to abuse: the various decisions of the Supreme Court have reinstated that
voluntarily administered Psychotropic drugs and the tests so conducted shall be taken into
evidence by the court. But this point has not been made clear to the extent of its misuse and
abuse, as the word voluntary has not been attached with a check procedure and can be
misused by the police. The exception, based on the assumption that voluntarily taken tests
will be truly voluntary, is problematic.
Earlier judgments on DDT: Dinesh Dalmia v. State. Dinesh Dalmia v. State, Crl. R.C. No.
259 of 2006. The court said that the investigation must be done in a reasonable time period
and as soon as possible otherwise the essence of the investigation gets lost. In doing so
scientific methods of investigation comes in handy as they help increase the efficiency of
investigation. It is necessary to keep in mind the necessity of the society at large and the need
of a thorough and proper investigation as against individual rights while ensuring that
constitutional rights are not infringed. Consequently, in the court's opinion, the narco-analysis
test does not suffer from any constitutional infirmity as it is a step in aid of investigation and
any self incriminatory statement, if made by the accused, cannot be used or relied upon by the
prosecution. The judgements have been supporting the use of DDT.
Recent judgements on DDT: Smt. Selvi & Ors Vs State of Karnataka. Smt. Selvi & Ors Vs
State of Karnataka Judgment on 5 May 2010. The present judgments do not support the use
of DDTs rather they hold them as a violation of the rights guaranteed under the constitution.
Such as:

(i)Right against self-incrimination enumerated in Article 20(3) of the Constitution, which

states that no person accused of an offence shall be compelled to be a witness against
himself/herself, and
(ii)Article 21 (Right to life and personal liberty) has been judicially expanded to include a
right against cruel, inhuman or degrading treatment.
(Jawale, 2014) The final analysis and admissibility of Narco analysis Test is dependent on the
corroborative evidences collected by the investigation authority. The present criminal justice
system is passionate with individual liberty and freedom in the context of fundamental rights
of an individual under the Constitution of India. The constitutional validity and admissibility
of Narco analysis test is upheld taking into consideration the circumstances under which it
was obtained or conducted, sometimes there may be a little possibility of miscarriage of
justice if due care and caution is not taken by the authority.

Objective
The objective of this research is to find out the constitutionality of Narco analysis and its
adoption in the Indian penal system.

Research methodology
The methodology used in order to fulfil the objective and deriving conclusions is secondary,
i.e. the research is based on articles published online either in journals or various blogs and
websites. With the help of the above the topic has been researched thoroughly and inferences
have been drawn based on the findings of various scholars.

Findings and conclusions

1. That, Narco analysis is considered to be ultra-vires the constitution because it leads to selfincrimination that is opposed by Article 20(3) of the Constitution of India. The invalidity of it
is only upto the limit of it being self-incriminating, other uses of it in admissions and
confessions is held to be valid.
2. The right against self-incrimination is also guaranteed under, This right is also guaranteed by
Article 14(3) (g) of the International Covenant on Civil and Political Rights, 1966 and the
Fifth Amendment to the U.S constitution.
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3.

This test can only be done if the subject voluntarily accepts for it. It has been considered to

be a part of his right to privacy.

4. The confessions made, if lead to the discovery of some other evidence are held to be
admissible.
5. The confession made under the influence of drug may not be compulsorily be correct, as the
effect of the drug used depend upon the physique and psyche of the person who has been
drugged. As it may or may not affect the senses of that person.
6. It has been scientifically proven that if a person repeats a thing, whether it be true or false, his
subconscious mind registers it in the same way and even after not being in his sense he would
repeat it the way his mind registered it. Therefore, for people who are maligners this test
cannot be trusted upon.
7. The use of psychotropic drugs has revealed that the subject often under the influence talks
about his personal life rather being consistent in revealing the subject matter of the
investigation. People often start to share fanciful stories.
8. People are often abused and brought to the court for confessions which is the greatest
drawback and an abuse of power. Such abuse have to be checked by the courts themselves
and have to be sure that the test conducted was wilful and not performed under threat or
promise of something.
9. These tests are not admissible as evidence, they can be of some help in either corroboration
or in finding other evidences, and this would only happen if the test was by the permission of
the person.
10. The tests should be done within a reasonable time period otherwise it loses its importance and
cannot be of any help. Even though they are not at all taken into evidence as they cannot be
reliable.
The main drawback of this technique is that some persons are able to retain their ability to
deceive even in the hypnotic state, while others can become extremely suggestible to
questioning. This is especially worrying, since investigators may frame questions in a manner
that may prompt incriminatory responses. The drugs used do not guarantee that the subject
will speak only the truth. The statements made in a hypnotic state are not voluntary and are
also not in a clear state of mind; hence these have not been admitted as evidence in the court
of law. Narco-analysis without consent raises certain issues such as (i) a physical assault on
the body by giving injections and also multiple painful stimuli such as slapping, pinching,
pushing, hitting, shaking the body and so forth to wake a person from hypnotic state to
answer the questions, and (ii) mental assault through the effect of the injection on his/her
mind and also an unrestricted access to the utmost privacy, the privacy of his/her own mind.
In the era of evidence-based medicine, it does not have any significant role in the treatment of
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any psychiatric conditions. Though this technique is known since the Second World War, it
has not been supported with adequate research to justify its claim.

Suggestions
It is suggested that courts should be strict in reviewing these tests if so allowed to be
conducted by the accused. They should be done without any influence or threat and under
proper supervision. Although they are truly dubious and it cannot be completely relied upon
yet if conducted should be properly monitored and recorded to wipe out the possibility of
coercion.

Referencing

http://www.asvattha.org/Data/Article025.htm
https://www.google.co.in/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0CCoQFjAC&u
rl=http%3A%2F%2Fwww.supremecourtcases.com%2Findex2.php%3Foption
%3Dcom_content%26itemid%3D5%26do_pdf%3D1%26id
%3D21437&ei=EtMFVeXnKc26uATuyILQBQ&usg=AFQjCNH6N3Nu63YxHWM

GUuo8mMXibmCnvw&sig2=T8Fsh6615N4STfvli7JJfg
icmr.nic.in/ijmr/2011/july/Viewpoint.pdf
https://sites.google.com/site/.../narco-analysis-polygraph---right-or-wrong
strippedlaw.blogspot.com/2009/10/narco-analysis-test-can-it-strike.html
www.legalblog.in/2011/05/narco-analysis-polygraph-tests.html
medind.nic.in/jal/t08/i3/jalt08i3p169.pdf
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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1097695
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1823268

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