AUTHOR- Sai Harshita Kachhawaha, Indore Institute of Law.
In the changing paradigm of society the individual started to search their place in the domain of comfort ability and for these they want to be strong economy, strong in politics and strong in the culture. This leads a huge competition among the people and people started using newer technologies in every area so that one will always dominate others. The criminal justice system is no more different from other systems and it has also affected from new technological advancements. The deception detection test is one of the technologies which utilizes as a tool in the extraction of truth in the investigation process. It includes narco-analysis, lie detector and brain mapping.
Narco-analysis is also known as the truth serum test. An injection known as Thiopentone is used for one such test. Its chemical name is sodium pentathol and it is mixed in distilled water before being administered to the accused. The deception detection tests (DDT) such as polygraph, narco-analysis and brain-mapping have important clinical, scientific, ethical and legal implications. The DDTs are useful to know the concealed information related to crime. This information, which is known only to self, is sometimes crucial for criminal investigation .It is been used widely by the investigating agencies
2. Narco Analysis from Constitutional & Legal Stand Points
Such tests generally don’t have legal validity as confessions made by a semi-conscious person are not admissible in court. The court may, however, grant limited admissibility after considering the circumstances under which the test was obtained. The petitioners in one of the case said courts could not direct the prosecution to hold Norco analysis, brain mapping and lie detector tests against the will of the accused as it would be violation of Article 20 (3) of the Constitution of India. 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 canon of Common law criminal jurisprudence. Art. 20(3) which embody this privilege read, “No person accused of any offence shall be compelled to be a witness against himself”.
Mental torture and thus violates the right to life under Article 21 as it deals with right to privacy. Again, law against intrusion in privacy of individual would not allow brain fingerprinting evidence to be given in 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 v. P.L.Dani where no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (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. She claimed that she had a right of silence by virtue of Article 20(3) of the Constitution and Section 161 (2) of Cr. P.C. The Apex Court upheld her pleas.
Moreover, the tests like Narco analysis are not considered very reliable. Studies done by various medical associations in the US adhere to the view that truth serums do not induce truthful statements and subjects in such a condition of trance under the truth serum may give false or misleading answers. In USA, in the case of Townsend v. Sain, 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.
Collecting evidence and helps in investigation does not amount to testimonial compulsion.
Thus, it does not violate the constitutional provision regarding protection against self-incrimination. In M.P.Sharma v. Satish Chandra, 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. The same point was reiterated in Kathi Kalu Oghad’s case.
3. Admissibility in the court
While Narco-analysis yielded an immense amount of information, it also triggered off many question as several critics shared profound sense of skepticism over the administration of serum on the witness to extract truth. Narco analysis is considered as a tool or aid in collecting and supporting evidence. However, doubts are raised whether it amounted to testimonial compulsion in judiciary and violation of human right, individual liberty and freedom.
Lawyers are divided on whether the results of Narco analysis and P300 tests are admissible as evidence in courts, as they claim that confessions made by a semiconscious person is not admissible in court. A Narco analysis test report has some validity but is not totally admissible in court, which considers the circumstances under which it was obtained and assessed its admissibility.
4. Criticism of Narco-analysis test
Narco analysis has been criticized on the ground that it is not 100% accurate. It has been found that certain subjects made totally false statements. 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 to the police before use of drug. It has been found that a person who has given false information even after administration of drug.
Law is a living process, which changes according to the changes in society, science, and ethics and so on. The Legal System should imbibe developments and advances that take place in science as long as they do not violate fundamental legal principles and are for the good of the society. A few democratic countries, India most notably, still continue to use Narco-analysis. The issue of using Narco analysis test as a tool of interrogation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be clearer in the near future.
There have been orders of various High Courts upholding the validity of Narco analysis. These judgments are in stark contrast with the earlier judgments of the Supreme Court interpreting Art. 20(3). The veracity lies in the fact that Narco-analysis is still a nascent interrogation technique in the Indian criminal justice system without any rules or guidelines. There have been orders of various High Courts upholding the validity of Narco-analysis.
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