ARTICLE 20 (3) OF THE CONSTITUTION OF INDIA AND

NARCO ANALYSIS – BLENDING THE MUCH AWAITED

GAUTAM SWARUP

NALSAR UNIVERSITY OF LAW

3-4-761 BARKATPURA
HYDERABAD – 500027

swarupsgautam@gmail.com
PHONE: +91 9866074793
 SELF INCRIMINATION DOCTRINE AND THE RIGHT TO SILENCE

The right against ‘Self Incrimination’ when it applies is an absolute right and is subject
to no exceptions.1 A review of this right leads us to the traditional reliance of the State
on confessions as most convenient in getting criminal convictions. A very fine line was
to be drawn to limit the power of the State in attempting to acquire such incriminating
confessions and prevent abuse of its undisputed power in course of the same. Such
abuse has been observed over the years with the police and investigating agencies
resorting to third degree methods in extracting information from the accused. Torturing
a person to extract information from him has been resorted to by law enforcement
agencies as a convenient, fast and direct method of investigation to bypass the
expensive and arduous processes of lengthy investigation.2 The line to be drawn by the
courts was in the form of the ‘Right against Self Incrimination’; in general, this doctrine
states that ‘no person, accused of any offence, shall be compelled to be a witness
against himself’.

1
Kenworthey Bilz, “Self incrimination doctrine is dead; Long live self incrimination doctrine:
Confessions, Scientific evidence and the anxieties of the Liberal State”, 1st ed. (2006), p.36: The author
argues that ambiguities relating to the doctrine arise of the nature the fact situation and about the
conditions that will trigger its protection. In Fischer v. United States 425 U.S 391, 400, it was held that
the United States’ Fifth Amendment which affords the protection of ‘Self Incrimination’ cannot be
removed by showing reasonableness. Reasonableness does not make for an exception to this
protection. The Supreme Court of India in State of Bombay v. Kalu Kathi Onghad and Ors AIR 1961
SC 1861: (1962) Bom LR 240 : 1961 Cri LJ 856 held that while the scope of the protection afforded
by Art. 20(3) is open to interpretation, the provision as a whole has no exceptions to it. The
interpretations here are based solely on technicalities and the spirit behind the inclusion of this
principle in the interests of efficient criminal jurisprudence. The Right against Self Incrimination is
flexible only because our courts have refused to clearly answer all the questions afforded by it; and when
this court has done so, changes in science and technology have thrown open new areas of confusion
regarding this right. This does not reduce in any measure the effect of the protection offered by Article
20(3).
2
M. Sivananda Reddy, “Narco Analysis and Truth Serum”,
http://www.cidap.gov.in/documents/narcoanalysis%20and%20truth
%20serum_129200522355%20PM.pdf, As accessed on 20/11/2008 at 07:30 p.m: The author discusses
the history of narco analysis and other scientific methods and how the former was in prevalence and
has been replaced by the latter.
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This right was afforded by the courts as a common law protection to the accused, in
consonance with the principles of an adversarial system of jurisprudence. The State is
vastly superior to an individual in terms of resources and the power to prosecute. The
aim of this system is to attempt to place the individual and the state on an equal footing
during trial. The mid-18th and mid-19th centuries’ criminal trials saw the origins of this
privilege and other tools to the accused such as the ‘beyond-reasonable-doubt’ and
‘burden proof on the prosecution’ doctrines which equipped him with political liberties
that could be used to defend himself in trial against the State, in a way minimizing the
relative disadvantage individual defendants would face compared to the vast trial
resources of the State. “A sovereign State… has no right to compel a sovereign
individual to surrender his right to self defense”.3 This privilege of Self Incrimination
limits the power of the State to acquire and present evidence ‘through’ the accused
himself in the interests of his autonomy and privacy; it thus interferes with the State’s
ability to control crime and maintain order in pursuance of the same interests. Today
these interests are seen as fundamental in acting as a check against rapidly growing
government power. It enables the maintenance of human privacy and the observance of
civilized standards of criminal jurisprudence. The major features of this privilege are:
1. The accused is presumed to be innocent and the State has to make a case of
prosecution independent of his involvement in the trial.
2. That it is for the prosecution to establish his guilt.
3. That the accused need not make any statement against his will.4
This privilege is also known as the right to remain silent; in essence barring coercion
and other forms of duress in the State’s endeavour of criminal prosecution. This
represents a form of the ‘Liberty – Order’ debate and the nature of the privilege affords
no exact idea as to placing a balance between the competing interests of State order and
individual liberties unlike various other rights. Modern jurisprudence has sought to
place such a balance.

The Mallimath committee on Criminal Justice Reforms on examination of the

inquisitorial system followed in France, Germany and other continental countries
3
Langbien, “The Privilege and Common Law”, p.83-84: tries to bring the idea of Abe fortas’s argument
in favour of adversarialism proposing ‘two equals meeting in battle’.
4
M.P.Jain, “Constitution of India”, 7th ed. (2006), p. 1244.
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recommends that some of the good features of this system be adopted in the adversarial
system to make it more effective.5 With regard to the right to silence, the committee
recognizes the accused as the best source of information and feels that without
subjecting him to any duress, a way to tap this critical source of information must be
found; it prescribes the freedom of the court to question the accused and elicit relevant
information and drawing adverse inferences upon refusal to answer.6 These
recommendations7 have been rejected by the Law Commission on grounds of
maintaining this balance- between the State and individual- unequivocally in favour of
individual liberties.

5
Mallimath Committee Report on Reforms in the Criminal Justice System: prescribes for a more pro-
active role by the judges, gives directions to investigating officers and prosecution agencies in the
matter of investigation and leading evidence with the object of seeking the truth and focusing on justice
to victims.
6
Ibid. para.8-9: The Committee also recommends that the accused be required to file a statement to the
prosecution disclosing his stand. It recognizes that at present the role of the accused in trial is minimal
and call for his positive involvement in trial to help secure evidence that may act for or against him in
the quest for truth and justice.
7
Id. Para.13: The Committee in its report has also suggested guidelines as to how the ‘burden of proof’
in criminal prosecutions could be shifted to the accused from the prosecution. Furthermore, the
committee has suggested that the standards of ‘proof beyond reasonable doubt’ followed by our courts
in prosecution of a crime needs to be done away with and replaced by the standard of “courts
conviction that it is true”.
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 SCIENTIFIC EVIDENCE AND NARCO-ANALYSIS VIS-À-VIS SELF
INCRIMINATION

The admissibility of a science in a court of law demands that 3 major requirements be

met: namely validity, reliability and legality.8 The same must be used to analyse the
science of narco analysis and its prospective admissibility in our courts.

Validity demands that the evidence procured be the result of a scientifically validated
method and that it measures all that it claims to measure with a reasonable amount of
accuracy. Reliability on the other hand is an indication of consistency in the accuracy
of the results procured, the success rate of the tests conducted and other consequences
of the same. A review of scientific literature on the use of narco-analysis and other lie-
detection methods ‘for detection of crime’ shows an insufficiency of material to assure
us that these are scientifically researched methods.9 The leading report on this two
pronged approach – viz. validity and reliability- is a paper on ‘Narco-Analysis’ by the
Forensic Science Laboratory, Bangalore.10 This report however, does not make a
mention of the health hazards of the test and the basis of narco-analysis as an
investigative technique; for this we turn to the paper by the ‘Peoples Union for
Democratic Rights’.11
8
Twenty Second Dr. Ramanadham Memorial Meeting on “Narco Analysis, Torture and Democratic
Rights” conducted by the Peoples’ Union for Democratic Rights, p.12.
9
Ibid.: the speaker, Mr. Amar Jesani also argues that most of this inconclusive literature is not form
science journals but are a result of security, intelligence and military sponsored agencies. The source of
funding for such projects plays an important role in the objectives/findings of the research.
10
S. Malini and B.M. Mohan, “Narco Analysis”, with the Forensic Science Laboratory, Bangalore,
http://bprd.gov.in/writereaddata/mainlinkFile/File1536.pdf, As accessed on 20-11-2008: The report
boasts of the success of such tests in the sensational cases of the Mumbai serial train blasts, blasts at
Delhi, Malegaon and more recently in Hyderabad; it is suggested that 20% of the individuals subjected
to this test were found to be innocent. The report draws inferences that narco analysis is not only a
technique to identify the real perpetrators of a crime, motive and modus operandi, conspiracies,
disfigurement and displacement of evidentiary items but also to identify the innocents within a short
period of time. Revelations made there from have led to discovery of incriminating information
forming probative truth and recoveries made U/s 27 of the Indian Evidence Act.
11
Supra n.8: The report suggest, with factual backing that the Barbiturate used for conducting Narco-
Analysis, Sodium Pentothal, needs to be administered with utmost delicacy and care failing which it
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Confessions formed the major basis of convictions in Ancient English Common Law.
It has been argued that ‘confessions’ have over the years turned out to be a very weak
source of evidence12. An increase in the use of scientific evidence as an investigative
technique reduced the burden of the court on confessions. Two critical issues need to be
examined here. The first and most important is if such replacement of confessions by
scientific methods would lead to the principles of ‘Self Incrimination’ governing
confessions to be automatically grafted onto scientific evidence. This would lead us to
believe that scientific methods of investigation are equally limited by the privilege of
self incrimination. The second assumption is that scientific methods are being used to
bypass confessions; therefore the principles of the privilege controlling confessions are
also bypassed and can be conveniently used by the courts.

Scientific forensic evidence is increasingly reliable, cheap and available. It is often a

very convenient and direct form of investigation that leads to speedy gathering of
evidence. The use of scientific evidence therefore relates inversely to confessions in an
investigation. The question that this poses is if new techniques that are substitutes to
confessions will be guided by the same principles that guide the courts and protect the
accused.13 In answering this question, the nature of narco-tests needs to be brought into
the picture.14 Whether blending narco-tests with the Right Against Self Incrimination
relates to the admissibility of the results procured thereof or to subjecting the accused to

could lead to the death of the accused. Instances have been cited such as the attacks in Pearl Harbour
in the United States where the same drug was administered on the injured owing to its speedy
anesthetic abilities. Several of these injured died because it had not been done with the high degree of
care that it required; it is also shown that the same drug is also used for euthanizing patients in
countries such as Netherlands due to its ability to hasten death; Sodium Pentothal is also used to
execute the ‘death Penalty’ in the United States. The report suggests the inadequacies of care taken in
administration of this drug; also the long lasting effect it may have on the minds of the accused on
whom the test is conducted.
12
William Blackstone, “4 Commentaries On the Laws of England”, 1st ed. (1937), p.357.: Blackstone
writes that “confessions are the weakest and most suspicious of all testimony; ever liable to be obtained
by artifice, false hopes, promises or favour or menaces; seldom remembered with accuracy or reported
with due precision; and incapable in their nature of being disproved by other negative evidence,”
13
Supra n., p.3.: The author argues that the demise of confessions themselves will not eliminate the
anxieties that have animated the doctrine of confessions. Instead these anxieties will simply shift onto
the doctrines for the admissibility of scientific evidence.
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the tests itself is a factor that needs to be examined. The case of State of Bombay v.
Kalu Kathi15 answered in the affirmative by stating that this protection is available to a
person accused of an offence not merely with respect to evidence to be given in the
court room in the course of trial but at all the previous stages if an accusation has been
made against him. Hence subjecting a person to narco analysis against his will violates
his right against the same. The technicalities of this right shall be dealt with in the next
section.

14
Narco Analysis is conducted by intravenously injecting Sodium Pentothal into the bloodstream; it is
an ultrafast-acting anesthetic and acts within 45 seconds of being injected. There are 4 stages to this
process of anesthesia. The aim in narco analysis is to keep the person in the second stage where an
appropriate dose of the chemical is maintained where the person is partly conscious and loses his
inbuilt inhibitions which could allow him to lie successfully. Therefore, under the effect of this
chemical, the person is not only induced into a trance like state, but is also induced into speaking the
truth. This is based on the fundamental assumption that the cortical portion of the brain is responsible
for our ability to lie and Sodium Pentothal affects this portion thus successfully impairing the ability to
lie; this assumption however, has no concrete scientific basis.
The effects of the second stage are reversible; an overdose of the chemical form this stage could lead
the victim to be unconscious and send him into the 3rd or 4th stage of anesthesia, the latter being
irreversible and leading to a coma or death.
15
AIR 1961 SC 1808
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 ARTICLE 20(3)16 AND THE RIGHT TO LIFE : NARCO ANALYSIS IN INDIA
SANS STARE DECISIS
On analysis of Art.20(3) of the Constitution of India, it is found to contain the following
components17:
1. It is a right available to a person ‘accused of an offence’;
2. It is a protection against ‘compulsion’ ‘to be a witness’;
3. It is a protection against such ‘compulsion’ resulting in his giving evidence
‘against himself’.
To claim the protection of this right, all three ingredients must necessarily co-exist.
M.P.Sharma v. Satish Chandra18 gave this right a broad interpretation and held that it is
not possible to limit this provision to oral evidence; the Supreme Court here brought in
various other forms of evidence such as ‘production of a thing’ and evidence by other
modes within the ambit of this Article. Scientific evidence has not been accorded its
due place in our country owing to the pace of developments in the field. Thus even
though Sharma v. Satish attempted to answer all major questions posed to the Self
Incrimination Doctrine in its current times, advancements in forensic science quickly
put forth new challenges to it. Kalu Kathi19 answered the question of compelling the
accused to give specimen handwriting, thumb impressions and signatures stated that the
right of the accused against self incrimination is not violated in such cases since “self
incrimination must mean conveying information based upon the personal knowledge of
the person giving the information” and covers only “personal testimony which must
depend upon his volition”. Here the court restricted the meaning of the phrase “to be
witness” to furnishing evidence in the form of oral or written statement and not large
enough to include impressions and specimen signatures. The leading case that has
guided precedent in our country with respect to narco-tests has been U.S v. Solomon20
where the United Sates Supreme Court held used expert witnesses to establish that
adequate safeguarding against the unreliability of narco-tests was possible; on the

16
Art. 20(3), Constitution of India: “No person accused of any offence shall be compelled to be a
witness against himself.”
17
M.P.Jain, “Constitution of India”, 7th ed. (2006), p. 1244.
18
AIR 1954 SC 300 : 1954 SCR 1077
19
Supra n.15.
20
753 F.2d.1522 (9th Cir. 1985)
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whole however, while narco-tests were held as unreliable, their acceptance as an
investigative technique was upheld. The question of compulsion was answered by the
Indian Supreme Court in Dinesh Dalmia v. State of Maharashtra21 wherein it said that
consent played no role in court-ordered narco-tests. This decision was however based
on a technical irregularity. If this decision is to be upheld as valid, then it can be
considered a valuable landmark in the course of the self incrimination doctrine in India;
this case however said that while subjecting a person to narco-tests was compulsive, the
revelations made are entirely voluntary; as such it has been held to widespread criticism
by the proponents of this right. The most recent development as far as consent of the
accused for conducting narco-analysis has been in the from of a stay order by the
Supreme Court in November 2006 on narco-analysis being carried on K.Venkateshwar
Rao in a case involving Krushi Cooperative Urban Bank.22 This is considered a
welcome move; however consent implies ‘informed consent’. The person giving this
consent must not only be made aware of his right against incriminatory evidence, but he
must also in cases of such consent be made aware of the procedure to be carried on him
and the consequences of such procedures.23 These two conflicting judgments however,
leave us in hazy ground with respect to the role of consent in conducting such tests.
Such a vital component of the privilege against Self Incrimination demands better
scrutiny by the courts. A previous judgment of the court in the case of Nandini
Satpathy v. P.L.Dani24 places any form of duress, physical or mental under the
definition of ‘compelled testimony’ and holds it as violative of the privilege. The aspect
of narco analysis, keeping in mind the compelling interest of the state in security and
order, cannot be put away without further explanation.
The drafting committee on “National Criminal Justice System Policy” headed by Prof.
N.R.Madhavanan has recommended various measures to be taken by the government to
amend various parts of the Criminal Procedural Code for effective management of the
21
Cri LJ (2006) 2401
22
Supra, n.8, p.4.
23
Ibid.: The author mentions the possible life threatening side effects of such a test which include
harmful effects on breathing and blood circulation, apnoea and life threatening allergic reactions of the
immune system. The population of our country consists of poor and uneducated people who may not
have knowledge of the same; consent may therefore be secured while they are unaware of such
dangers.
24
AIR 1978 SC 1025
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overall science and technology needs of the criminal justice system.25 Section 53 of the
Cr.P.C26 was amended to allow medical examination of an accused in the interests of
justice, “as maybe reasonably necessary”. Narco-tests maybe considered reasonable
under such circumstances as terrorist attacks and other grave cases. A question relates
to how the graveness of such an issue is to be decided; it is, under the said Section, the
discretion of the prescribed police officers to make such a move and as evident is open
to abuse. Section 45 of the Indian Evidence Act 187227 affords, in the interests of
justice the opinions of experts as admissible in the court; it is however silent on the
complicated question of narco-tests. This complication arises from the fact that the
result of a narco-test is submitted to the court in the form of a report by the expert
doctor under whose supervision such a test is conducted.
The problem therefore, is threefold. First relates to the compulsive subjugation of a
person to narco-tests; second is relating to the right extending to all stages of
investigation and not merely to the trial stage. The third is relating to the form in which
the results of such tests are submitted to the court. An answer could be sought by
considering, as discussed earlier, that narco-tests, like other forms of scientific evidence
are alternatives to confessions and likewise are meant to bypass the privilege
guaranteed against self incrimination. Going strictly by precedent, no conclusive

25
Para. 7.2.4 and para. 7.2.5 propose amendments to the Indian Evidence Act to make scientific
evidence admissible as “substantive evidence rather than opinion evidence”.
26
Section 53 – “Examination of a Person”
1. When a person is arrested on a charge of committing an offence of such a nature and alleged
to have been committed under such circumstances that there are reasonable grounds for
believing that an examination of this person will afford evidence as to the commission of this
offence, it shall be lawful for a registered medical practitioner, acting at the request of the
police officer not below the rank of a sub-inspector, and for any person acting in good faith in
his aid and under his direction, to make such an examination of the person as reasonably
necessary in order to ascertain the facts which may afford such evidence, and to use such force
as is reasonably necessary for that purpose.
27
Section 45 - Opinions of experts
When the Court has to form an opinion upon a point of foreign law or of science or art, or as identity of
handwriting 1 [or finger impressions], the opinions upon that point of persons specially skilled in such
foreign law, science or art, 2 [or in questions as to identity of handwriting] 1 [or finger impressions] are
relevant facts.
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answer can be reached to either of the question posed above;28 however as Cardozo.J
has said29 “the right against Self Incrimination is a right that might be lost and justice
still be done.” The answer demands more insight into the rights guaranteed to the
citizen.
It is argued30 that Narco-Tests satisfy all the requirements of the UN definition of
torture31. If this argument is accepted, there can be no question as to the admissibility
of Narco-tests in a court of law; the situation however is different owing to the counter-
argument that it is infact a substitute third degree methods of extracting information
from an accused.32 Kishore Singh v. State of Rajasthan33 prescribed humane treatment
of an accused as far as possible unless absolutely necessary as long as he was in police
custody. The case of Gobind Singh v. State of Madhya Pradesh34 ruled on the ‘Right to
Privacy’ of an individual as extending to the physical and mental state of the individual.
Further developments in this area35 have clearly pointed out as ultra vires the authority
of the State to forcibly expose the parts of an individual’s life that he wishes to keep to
himself within his private sphere. An approach to the issue of Narco analysis guided by
the sole motives of individual liberties would therefore hold the same to be in

28

29
Palko v. Connecticut, 302 U.S, 319,325 (1937)
30
Supra, n.8, p.25-26.
31
Article 1 of the UN Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or
Punishment, 26th June 1987 defines torture to have 4 components; mainly 1) physical or mental
suffering and is a degrading treatment, 2) it is intentionally inflicted, 3)it is inflicted with specific
purposes such as eliciting information and 4) it is inflicted by an official actor or and actor acting on
behalf of such official.
32
Eben Moglen, “Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against
Self- Incrimination”, 92 Mich. L. Rev. 1086, 1087, 1098 (1994)
33
AIR 1981 SC 265 : 1981 Cri LJ 17
34
AIR 1975 SC 1378: “…they sought to protect individuals in their belief, thought, their emotions and
their sensation. Therefore they must be deemed to have conferred upon the individual as against the
government, a sphere where he should be left alone.”
35
See M.P.Sharma v. Satish Chandra AIR 1954 SC 300; PUCL v. Union of India 1997 (1) SCC 301
(97); R.Rajagopal v.State of Tamil Nadu AIR 1995 SC 264.
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contravention of the rights guaranteed under Articles 20(3) and 2136 of the Constitution
of India.

36
Article 21, Constitution of India: “No person shall be deprived of his life or personal liberty except
according to procedure established by law.”
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 CONCLUSION: BLENDING THE MUCH AWAITED

The term ‘blending’ used to relate Narco Analysis and Art.20(3) can have two distinct
connotations; one could be to consider Narco Analysis as a form of confession or
incriminating evidence and thus bring it within the ambit of Art.20(3) thereby affording
an accused a protection against it. A majorly different viewpoint to this would be to
allow Narco Analysis, owing to its complex nature, to bypass this protection.

The Right against Self-Incrimination guaranteed in the Constitution of India, though

clear in its wording, owing to equally compelling factors such as the State’s interest in
preservation of law and order, has failed to generate a set of concrete workable
principles that a court can use to decide and defend the outcomes of particular cases.
The maxim Nemo Tenetur Seipsum accusare meaning ‘no man is bound to accuse
himself’ had its origin in a protest against the inquisitorial and manifestly unjust
methods of interrogation of accused persons. A proper analysis of the this protection,
and its implications on the system of criminal justice vis-à-vis providing exceptions to
this Right and its implications on individual liberties will demand a very objective
understanding of the ethical, scientific and legal aspects of Narco Analysis and Self-
Incrimination.
Absolute reliability on the findings of Narco-tests cannot be placed.37 The concerns
over the health aspects of such tests raise issues of a different nature altogether; the
ethical dimension to this can be mooted to infinity. If it is the legality of admitting
narco analysis results that we discuss, then the situation as it stands today clearly
indicates that our Supreme Court has not yet delved into a direct juxtaposition of Narco

37
Amar Jesani, “Medical Professionals and Interrogation: Lies About Finding the Truth”, Indian
Journal of Medical Ethics, vol. 3, no. 4, October-December 2006, pp. 116-117: Claims of the success
of Narco-tests are based on 2 fundamental assumptions; that lying is a more complex mechanism that
telling the truth and is controlled by the cortical part of the brain. Sodium Pentothal affects this part of
the brain and thus impairs the ability of the person to lie successfully. A person under the influence of
this drug is under a hypnotic state and will elicit truthful responses to carefully worded questions. The
flaw lies in the fact that under such a state, a person may not only divulge his fantasies and figments of
his imagination but in that this process also works backwards. Information may, through carefully
administered settings be put into the mind of the accused which may lead him to believe things that
may not be true.
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Analysis and the violation of Art.20(3).38 Narco analysis in India is a nascent form of
investigation. There is an absence of rules and regulations governing the admissibility
and plausibility of the same. Certain situations demand such drastic investigative
techniques, in the words of Justice Krishna Iyer39
“More than human dignity of the accused involved; the human personality of others in
the society must also be preserved. Thus the values reflected by the privilege are not
the sole desideratum; society’s interest in of equal weight.”
Who decides the graveness of a crime and ergo the modus operandi of the investigation
process to be followed? This question demands a set of guidelines governing the
admissibility of narco analysis. The present situation is functioning in a confused
manner but is commendable in so far as, whether or not a person is subjected to such
tests, due regard is given to his right against the same; a conclusion is reached only by a
balancing act against the overpowering interests of the State and society.
An alternative to this could be to decide each case on its merits and leave it to the court
of law to decide the admissibility or subjection of a person to such tests. Such an
alternative is not feasible in light of need of speedy criminal prosecution.40

The individual-State balance can be reached only by empowering the State in its
endeavour of public order and control of crime and at the same time placing clear and
distinct limits upon such power. A system of accountability and dispense of
information giving force the public’s ‘Right to Know’ are indispensible features of such
limits. At the same time, standards of quality, secrecy and security need to be
maintained.41
Blending Narco Analysis with Article 20(3) therefore demands immediate workable
laws, failing which it is in constant likelihood of abuse by the State and its
functionaries.

38
Shwetali Bajpal,”Narco Analysis and the Constitution”
http://www.indlawnews.com/display.aspx?3946, As accessed on 20-11-2008.
39
Nandini Satpathy v. P.L.Dani, AIR 1978 SC 1025
40
All. MR (Cri) 74, (2005).
41
Supra, n.10.
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