NAROC ANALYSIS

Scientific studies demonstrate that the test is not foolproof and even induces confessions from
innocent persons, as the subject is in a highly suggestible state and prone to give false or
misleading answers to questions that may be improperly framed. Hence doubts are raised
whether it amounted to testimonial compulsion in judiciary and violation of human right,
individual liberty and freedom.

1. Self incrimination

It has been alleged that Narco Analysis is a blatant violation of the Article 20(3) of the Indian
Constitution. Article 20 (3) of the Indian Constitution 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.

The verdict also said that the evidence procured under the effect of truth serum is also
admissible. In the course of the judgment, a distinction was drawn between “statement" (made
before a police officer) and “testimony" (made under oath in court). The Judges, Justice
Palshikar and Justice Kakade, said that the lie-detector and the brain mapping tests did not
involve any “statement" being made and the statement made under narco analysis was not
admissible in evidence during trial. The judgment also held that these tests involve “minimal
bodily harm".

In Dinesh Dalmia v State [5] , 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 M.P.Sharma v. Satish Chandra [6], the Apex Court observed that since the words used in
Article 20(3) were “to be a witness" and not “to appear as a witness" the protection is extended
to compelled evidence obtained outside the Courtroom. In Indian constitution protection of life,
liberty and freedom has throughout interpreted and article 14, 19, 21 are best example for any
constitution against right to privacy.

In a decision pronounced today authored by the Chief Justice of India himself, the Supreme
Court has declared that narco-analysis tests cannot be conducted on an accused without his
consent. Holding that right to personal liberty, as enshrined in Article 21 of the Constitution of
India and the protection against self-incrimination available to all persons in India in terms of
Article 20(3) were all pervasive, this decision in Selvi v. State of Karnataka can as well be hailed
to be one of trend-setting landmark judgments of India. In fact the Supreme Court extended this
reasoning and bar to even poly-graphic tests (lie-detector tests), Brain Electrical Activation
Profile (BEAP) test, and Functional Magnetic Resonance Imaging (FMRI).

The judgment, which runs over 250 pages, the conundrum leading to the present dispute was
noted by the Court in the following terms; "Objections have been raised in respect of instances
where individuals who are the accused, suspects or witnesses in an investigation have been
subjected to these tests without their consent. Such measures have been defended by citing the
importance of extracting information which could help the investigating agencies to prevent
criminal activities in the future as well as in circumstances where it is difficult to gather evidence
through ordinary means. ... It has also been urged that administering these techniques does not
cause any bodily harm and that the extracted information will be used only for strengthening
investigation efforts and will not be admitted as evidence during the trial stage. The assertion is
that improvements in fact-finding during the investigation stage will consequently help to
increase the rate of prosecution as well as the rate of acquittal. Yet another line of reasoning is
that these scientific techniques are a softer alternative to the regrettable and allegedly widespread
use of ‘third degree methods’ by investigators."

Selvi v. state of karnataka1

In a major blow to investigating agencies, the Supreme Court held the use of narco analysis,
brain-mapping and polygraph tests on accused, suspects and witnesses without their consent as
unconstitutional and violation of the ‘right to privacy'.
Supreme Court says: “We hold that no individual should be forcibly subjected to any of the
techniques in question, whether in the context of investigation in criminal cases or otherwise.
Doing so would amount to an unwarranted intrusion into personal liberty.”

1
Selvi vs State of Karnatka AIR 2010 SC 1974
In the case of Selvi v. State of Karnatka2, it was held by the Supreme Court of India that the
results of the test cannot be admitted as an evidence even though consented by the accused
because there is no conscious control is being exercised by the subject during the course of test
but the court left one option that if the subject consented for the test then any material or
information discovered that can be admitted under section 27 of the Indian Evidence Act, 1872.
Further it was also held that according to section 25 of Evidence Act “Confession made before
any police officer are not admissible as evidence before the court.” Thus the court is of the view
that the statements made by the subject during custody are not admissible as evidence unless
same has to be cross examined or judicially scrutinized.

In the case of Nandini Satpathy Vs. P.L. Dani3 (Nandini Satpathy Vs. P.L. Dani AIR 1978 Sc
1025) Supreme Court said that “No one can extract statements from the accused, who has right
to silence during the course of interrogation (investigation)”. It was also claimed that the right to
keep silence is by the virtue of Article 20(3) of the constitution of India and section 161(2) of
Criminal procedure code and same was upheld by the apex court.

In M.P.Sharma Vs. Satish Chandra (1954 AIR 300 SC) there was a issue that Article 20(3)
provides right to the person witness in courtroom and not beyond that and same issue has been
raised by the respondent in the Kathi kalu Oghad case which apex court clearly observed and
held that since Article 20(3) has words “to be a witness” and not “to appear as a witness” so the
protection is extended to compelled evidence obtained even outside of courtroom. The privilege
against self-incrimination enables the maintenance of human privacy and right to silence
pronounced by the Supreme Court.

It is well established that the Right to Silence has been granted to the accused by virtue of the
pronouncement in the case of Nandini Sathpathy vs P.L.Dani2 ; no one can forcibly extract
statements from the accused, who has the right to keep silent during the course of interrogation

2
Use of modern scientific Tests in Investigation and Evidence: Mere Desperation or justifiable in Public Interest by
Abhyudya Agrawal and Prithvijit Gangopadhyay W.B. NLJS L. Rev. (2009).
3
Misconceptions about narco analysis by Bannur Muthai Mohan, Ind jrl of Medical Ethics Vol.4, 2007.
(investigation). By the administration of these tests, forcible intrusion into one’s mind is being
restored to, thereby nullifying the validity and legitimacy of the Right to Silence

In USA, in the case of Townsend v. Sain4 , it was held that the petitioner’s confession was
constitutionally inadmissible if it was adduced by the police questioning, during a period when
the petitioner’s will was overborne by a drug having the property of a truth serum.

It has been held in Ram Jawayya Kupar’s case that executive power cannot intrude on either
constitutional rights and liberty, or for that matter any other rights of a person and it has also
been observed that in absence of any law and intrusion in fundamental rights must be struck
down as unconstitutional.5

4
372 US 293 (1963)
5
1955(2)SCR225