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What is Nacro Analysis Test?

A person is able to lie by using his imagination. In the Narco Analysis Test, the subject's
imagination is neutralised by making him semi-conscious. In this state, it becomes difficult
for him to lie and his answers would be restricted to facts he is already aware of.
Experts inject the subject with Sodium Pentothal or Sodium Amytal. The dose is dependent
on the person's sex, age, health and physical condition. A wrong dose can result in a person
going into a coma, or even death.
The subject is not in a position to speak up on his own but can answer specific but simple
questions. The answers are believed to be spontaneous as a semi-conscious person is unable
to manipulate the answers.
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What is the Brain-Mapping test?
It is a test that maps the brain to reveal 'guilty knowledge.'
The brain-mapping test is done to interpret the behaviour of the suspect and corroborate the
investigating officers' observation and the suspect's statements.
During the tests, forensic experts apply unique technologies to find out if a suspect's brain
recognises things from the crime scene that an innocent suspect would have no knowledge of.
In a nutshell, experts say the brain fingerprinting test -- as the brain-mapping test is also
called -- matches information stored in the brain with information from the crime scene.
Studies have shown that an innocent suspect's brain would not have stored or recorded certain
information, which an actual perpetrator's brain would have stored.
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What is Polygraph test?
Also known as a "lie detector test". Polygraphs are a common part of criminal investigations
and background checks. More and more companies, especially government bodies, now
require these tests from potential employees.
A polygraph is a simple machine that consists of six sensors or "wires" that are attached to
the person taking the test. The examiner, known as forensic psychophysiologist (FP),
observes a sheet of moving paper and the type of lines drawn on it by a special pen. These
lines vary according to the emotional reaction of the subject to the questions, and these
signals are recorded on paper
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1
http://www.nationmaster.com/encyclopedia/Narco-Analysis ( last time viewed on 12
th
February, 2014)
2
ibid
3
ibid

SUMMARY OF SELVIS CASE
High courts of our country have been upholding and defending such tests since the past
decade despite knowing that such tests affected legal reasoning and logic as the scientific
evidence had long discredited such tests.
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It was the duty of the Supreme Court to overrule
such cases by disagreeing with the reasoning of various High Courts of the country. The High
Court while addressing the issue gave less attention towards the potential rights violation
under Article 21 of the Constitution of India, which protects the right to life and personal
liberty. The major of High Courts did not even address the issue of right to privacy and Narco
analysis amounting to torture or cruel, inhuman, or degrading treatment.

The Supreme Court overruled various High Courts in declaring that the administration of
Narco analysis, brain mapping, and polygraph tests violated subjects rights against self-
incrimination in contravention of Article 20(3) of the Constitution of India. According to that
article, No person accused of an offence shall be compelled to be a witness against himself.
Mainly, the Supreme Court has disagreed on the reliability/unreliability of the tests, Self-
incrimination protections and Substantive due process rights. The Supreme Courts decision
was more diverted towards protecting the Constitutional requirements and International
Human Rights. Again, the Supreme Court departed sharply from the stance of the lower
courts. First, the Court found all three tests to amount to an invasion of privacy by intruding
into a subjects mental privacy, denying an opportunity to choose whether to speak or
remain silent, and physically restraining a subject to the location of the tests. Second, the
Court declared all three tests to amount to cruel, inhuman or degrading treatment because of
the mental harm likely suffered and the potential physical abuse by police or prison officials
that could result from the responses given. As the Court stated, forcible intrusion into a
persons mental processes is an affront to human dignity and liberty, often with grave and
long-lasting consequences.
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Further, the High Courts of Karnataka, Bombay and Delhi
found that the administration of Narco analysis itself could not violate Article 20(3) because
statements could not be known to be incriminating until after the administration of the test.
According to these judgments, only if an incriminating statement was in fact made and then
admitted as evidence could a potential violation occur.
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The Supreme Court rejected these
arguments. First, the Court found that forcing a subject to undergo Narco analysis, brain-
mapping, or polygraph tests itself amounted to the requisite compulsion, regardless of the
lack of physical harm done to administer the test or the nature of the answers given during the
tests.31 Secondly, the Court found that since the answers given during the administration of
the test are not consciously and voluntarily given, and since an individual does not have the
ability to decide whether or not to answer a given question, the results from all three tests
amount to the requisite compelled testimony to violate Article 20(3). Even if a person

4
State of Andhra Pradesh v. smt. inapuri Padma and ors., case no. 459 of 2008; Delhi (sh. shailender sharma
v.state, crl. wp no. 532 of 2008); Gujarat (santokben sharmanbhai jadeja v. state of Gujarat, special criminal
application no. 1286 of 2007)
5
Smt. selvi & ors. v. state of Karnataka, criminal appeal no. 1267 of 2004, Supreme Court of India,
6
Ram Chandra Ram Reddy v. Maharashtra, Criminal Writ Petition No. 1924 of 2003 and Sh. Shailender
Sharma v. State, Crl. WP No. 532 of 2008
voluntarily agreed to undergo any of the tests at the outset, the responses given during the
tests are not voluntary. Overall, the Supreme Court rightly rejected the High Courts reliance
on the supposed utility, reliability and validity of Narco analysis and other tests as methods of
criminal investigation. This confusion surrounding around the techniques allowed the Court
to carry out a thorough analysis of the various constitutional rights at stake, namely rights
against self-incrimination and substantive due process rights, a study that the High Courts
were unable or unwilling to do.


SELIVIS CASE AND THE SOCIETY
The use of Narco analysis as an investigation tool or as evidence is violative of the right to
life, liberty and the right against self incrimination which is the fundamental rights given to
any person in a criminal trial. Such test can result in miscarriage of justice and conviction of
innocent person in a criminal trial as these procedures are unreliable. The society is in danger
as such tests may result in misutilization as use of coercive third-degree methods is increasing
in our society. It is necessary to keep in mind the interest of the society at large and the need
for a thorough and proper investigation, as against individual rights, while ensuring that the
individual constitutional rights are not infringed. If these tests are properly considered to be
steps in the aid of investigation and not for obtaining incrimination statements, there is no
constitutional infirmity whatsoever. Section 53 of the Criminal Procedure Code accords the
requisite statutory sanction for conducting these tests. The use of term such other tests in
Section 53 CrPC includes in its ambit polygraph, brain-mapping and Narco analysis. Section
24 of the Evidence Act lays down that a confession made by an accused person is irrelevant
in a criminal proceeding if the making of such confession appears to the Courts to have been
caused by inducement, threat or promise. The section is very clear on the point that a
confession obtained by inducement, threat or promise would not be workable. In a Narco
analysis test there is definite element of inducement, so not only fundamental rights of a
person is violated, conducting this test would be against the spirit of section 24 of the
Evidence Act and the result obtained would be irrelevant in a criminal proceeding. A
combined reading of Ss.25 to 27 of the Evidence act is that no confession either made to the
police or in the custody of police would be proved against a person accused of any offence. It
has been held by the Indian Court many a times that the statements made to the police or in
the custody are not admissible. These sections read along with S. 32 of the Act bar statements
being admissible even if there is the slightest coercion or intimidation. But the same Courts
have given a green signal to conduct the Narco analysis tests at the cost of personal liberty of
the person on whom the test is conducted which is a clear cut violation of the legal principles
and the constitutional values. (In selvis case, he Supreme Court left open the possibility for
abuse of such tests when it provided a narrow exception, almost as an afterthought, namely
that information indirectly garnered from a voluntary administered test i.e. discovered
with the help of information obtained from such a test can be admitted as evidence).




RESEARCHERS VIEWS -
But at the same time, Fundamental Rights themselves has no fixed content most of them are
empty vessels into which each generation must pour its contents in the light of its
experience.[Keshavananda Bharati v. State of Kerala. 1973.] The Constitutional principles
are the hollow bricks which are to be filled in accordance with the changing needs of the
society. Law being a living process changes in accordance with the needs of the society,
science, ethics. But this change should be based on the principles of justice and equity.
Society has the right to be protected against the dangerous criminals which may be the real
threats to the society. No one actually knows whether the suspect is guilty or innocent, Police
may try to find the fact by taking measures like these test. If the 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 such truth serum legal. The fundamental principles of jurisprudence cannot be
affected by permitting such test (Right of accused against self-incrimination and Right to
remain silent).

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