ABSTRACT The project elaborates the debate in relation to scientific tests.

The project traces the history of investigation wherein the inducing of drugs first took place and its usage now. Further various decisions have been cited wherein the judiciary has totally prohibited the use of such drugs which are so used to extract truth out of people. There have also been instances wherein it has been misused by the investigation agencies and are rather used as a cover up for their fallacies. It has been found during the course of project that these tests should be allowed in limited circumstances and that also with the consent of the person on whom it is required to be done, thereby guaranteeing to citizens not only fundamental rights but human rights too. RESEARCH METHODOLOGY AIM AND OBJECTIVE OF THE STUDY The aim of the project is to understand the validity of scientific tests and the implications and legality of these tests and whether these tests could be conducted on persons to extract truth. Further to testify whether these tests are not ultra vires the constitution. SCOPE AND LIMITATIONS The scope of the project is limited to analyzing the constitution articles and various covenants that deal exclusively with Human Right issues. Limited examples of cases from other countries have also been taken in order to clarify certain points but the scope of the project itself does not extend to a comparative study of the law as it exists in other countries. The basis of study is mostly limited to India. METHODOLOGY The methodology adopted is largely analytical and descriptive. Reliance has been placed largely on secondary sources like books and articles. The lectures and classroom discussion have been rich with valuable pointers and gave direction to the research.

RESEARCH QUESTIONS 1. What are scientific tests actually? 2. What is their evidentiary value?

3. Do they affect the fundamental rights of the people concerned according to Indian Constitution? 4. Do these tests affect the Human Rights of the people concerned? MODE OF CITATION A uniform system of citation is followed throughout in the contents.

Debating the Validity of Scientific Tests as opined by Courts Introduction: The concept of scientific test basically entails gathering empirical and measurable evidence subject to specific principles of reasoning. The Oxford English Dictionary says that scientific method is: "a method or procedure that has characterized natural science since the 17th century, consisting in systematic observation, measurement, and experiment, and the formulation, testing, and modification of hypotheses. While applying this concept to criminal investigation it can be observed that this concept is used in two ways. One is when crime scene is investigated and circumstantial evidence is collected accordingly to decide upon the suspects and deduce about the crime so committed.1 The way that is being used these days is that the person is induced with something like a truth drug to ascertain whether that person has committed that crime or by means of lie detector (polygraph test) quantify as to whether that person has committed that crime. The focus of this paper is upon the view whether such tests by means of injecting the concerned person actually hold any validity. Concept of Narco-analysis The term Narco-analysis is derived from the Greek word nark (meaning "anesthesia" 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. The term narco-analysis was coined by Horseley. Narco analysis first reached the mainstream in 1922, when Robert House, a Texas obstetrician used the drug scopolamine on two prisoners.2 This drug induces the subject under the influence of the drug, so that he talks freely and is purportedly deprived of his self-control and will power to manipulate his answers. The underlying theory is that a person is able to lie by using his imagination as the answers are involuntary and against his will.3 In the Narco-analysis test, the subject is not in a position to speak up on his own but can answer specific and simple questions.

Stauffer, Eric, Crime Scene Investigation, available at www. swissforensic .org/ presentationbs/ assets/ mercercsi. Pdf, last visited on 19th April, 2012.
2

Reddy,M.Sivananda, Narcoanalysis and Truth serum , available http://www.cidap.gov.in/documents/narcoanalysis%20and%20truth%20serum_129200522355%20PM.pdf, visited on 20th April,2012
3

at last

Kumari, S. Kusuma, Narco Analysis Right to Self Incrimination vs. Public Interest, (2007) Cri LJ (June) pp. 137141, All India Reporter, Nagpur, 2007. p.138.

Procedure involved in Narco-analysis Generally for the process of narco analysis truth serums are used. But it is observed that truth serums are no serum at all. Most commonly used drug for truth serum test is an anaesthetic and sedative drug. Sodium Pentothal which when administered intravenously can make a person garrulous and confessional. The Narco-analysis test is conducted by mixing 3 grams of Sodium Pentothal or Sodium Amytal dissolved in 3000 ml of distilled water. Depending on the persons sex, age, health and physical condition, this mixture is administered intravenously along with 10% of dextrose over a period of 3 hours with the help of an anaesthetist. Wrong dose can send the subject into coma or even result in death. The rate of administration is controlled to drive the accused slowly into a hypnotic trance. The effect of the bio-molecules on the bio-activity of an individual is evident as the drug depresses the central nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated by the investigating agencies in the presence of the doctors. The revelations made during this stage are recorded both in video and audio cassettes. The report prepared by the experts is what is used in the process of collecting evidence. This procedure is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.4 Other truth finding tests: Apart from narco test there are two other popular tests used on the convicts for extraction of truth. These are: I. Polygraph or lie detection test:5 It is an examination, which is based on an assumption that there is an interaction between the mind and body and is conducted by various components or the sensors of a polygraph machine, which are attached to the body of the person who is interrogated by the expert. The machine records the blood pressure, pulse rate and respiration and muscle movements. Polygraph test is conducted in three phases- a pretest interview, chart recording and diagnosis. The examiner (a clinical or criminal psychologist) prepares a set of test questions depending upon the relevant information about the case provided by the investigating officer, such as the criminal charges against the person and statements made by the suspect. The subject is questioned and the reactions are measured. A baseline is established by asking questions whose answers the investigators know. Lying by a suspect is accompanied by specific, perceptible physiological and
4

Acharya,Subhojyoti, Is Narco Analysis a Reliable Science? Present Legal Scenario In India, available at http://www.legalserviceindia.com/article/l176-Narco-Analysis.html 5 id

behavioural changes and the sensors and a wave pattern in the graph expose this. Deviation from the baseline is taken as a sign of lie. All these reactions are corroborated with other evidence gathered. The polygraph test was among the first scientific tests to be used by the interrogators. It was Keeler who further refined the polygraph machine by adding a Psycho-galvanometer to record the electrical resistance of the skin. II. P300 or the Brain Mapping Test:6 This test was developed and patented in 1995 by neurologist Dr. Lawrence A. Farwell, Director and Chief Scientist Brain Wave Science, IOWA. In this method, called the Brain-wave finger printing; the accused is first interviewed and interrogated to find out whether he is concealing any information. Then sensors are attached to the subjects head and the person is seated before a computer monitor. He is then shown certain images or made to hear certain sounds. The sensors monitor electrical activity in the brain and register P300 waves, which are generated only if the subject has connection with the stimulus i.e. picture or sound. The subject is not asked any questions. Dr. Farwell has published that a MERMER (Memory and Encoding Related Multifaceted Electro Encephalographic Response) is initiated in the accused when his brain recognizes noteworthy information pertaining to the crime. These stimuli are called the target stimuli. In a nutshell, Brain finger printing test matches information stored in the brain with information from the crime scene. Studies have shown that an innocent suspects brain would not have stored or recorded certain information, which an actual perpetrators brain would have stored. In USA, the FBI has been making use of Brain mapping technique to convict criminals. Scientific Validity of these Techniques Scientific Validity of the impugned techniques has been questioned and it is argued that their results are not entirely reliable. There are various reasons for the same. Amongst them is that an expression of surprise could be mistaken for physiological responses that are similar to those associated with deception because the measured changes in physiological responses are not necessarily triggered by lying or deception. Instead, they could be triggered by nervousness, anxiety, fear, confusion or other emotions. Furthermore, the physical conditions in the polygraph examination room can also create distortions in the recorded responses. The mental state of the subject is also vital since a person in a state of depression or hyperactivity is likely to offer highly disparate physiological responses which could mislead the examiner. When the subject

id

does not remember the facts in question, there will be no self-awareness of truth or deception and hence the recording of the physiological responses will not be helpful. Errors may also result from `memoryhardening' and the subject may not be aware of the fact that he/she is lying. The qualifications and competence of the polygraph examiner are of the utmost importance. Human fallibility is therefore present as before, but now it may be said to be fortified with the mystique of science. Countermeasures are techniques which are deliberately used by the subject to create certain physiological responses in order to deceive the examiner. . The most commonly used `countermeasures' are those of creating a false sense of mental anxiety and stress at the time of the interview, so that the responses triggered by lying cannot be readily distinguished. A Working Party of the British Psychological Society (BPS) also came to a similar conclusion in a study published in 2004. A polygraph is sometimes called a lie detector, but this term is misleading. A polygraph does not detect lies, but only arousal which is assumed to accompany telling a lie. Eg: when emotions are attached to it.7 There have been series of cases where the judiciary questioned the validity of these tests. Amongst them were the cases of Frye v. United States8 and United States v. Scheffer 9wherein the validity of polygraph tests was questioned and the Supreme Court came to the conclusion that the exclusion of polygraph evidence did not violate the Sixth Amendment right to present a defence, constitutional right. It further said that it leads to Collateral litigation because litigation over the admissibility of polygraph evidence is by its very nature collateral, a per se rule prohibiting its admission is not an arbitrary or disproportionate means of avoiding it. Only those defendants who successfully take examinations are likely to want the results admitted. A defendant can take the test many times, if necessary, until he gets a result which suits him. Even stipulated tests are not free of this taint; because of course his lawyers will advise him to have several secret trial runs before the prosecution is approached. If nothing else, the dry runs will habituate him to the process and to the expected relevant questions.

A review of the current scientific status and fields of application of Polygraphic Deception and Detection, Final report (6 October 2004) from the BPS Working Party, The British Psychological Society, available at http://www.bps.org.uk/sites/default/files/documents/polygraphic_deception_detection__a_review_of_the_current_scientific_status_and_fields_of_application.pdf, last visited on 20th April 2012.
8

54 App. D. C. 46, 293 F. 1013,No. 3968,Court of Appeals of District of Columbia,Submitted November 7, 1923 December 3, 1923, Decided, available at http://www.daubertontheweb.com/frye_opinion.htm, last visited on 21st April, 2012.
9

523 US 303 (1998)

The introduction of evidence of the polygraph tests would violate the character evidence rule where it is employed as a tool to determine or to test the credibility of witnesses. Analysis of Narco Test technique After analysing the narco analysis technique one can come to the conclusion that this technique does not have an absolute success rate and there is always the possibility that the subject will not reveal any relevant information. While some persons are able to retain their ability to deceive even in the hypnotic state, others can become extremely suggestible to questioning. Since investigators who are under pressure to deliver results could frame questions in a manner that prompts incriminatory responses. Subjects could also concoct fanciful stories in the course of the `hypnotic stage'. Since the responses of different individuals are bound to vary, there is no uniform criterion for evaluating the efficacy of the `narcoanalysis' technique. In 1948 Raymond Cens case, the narcoanalysis technique was used in the course of the examination and the defendant did not object to the same. At the trial, testimony about these findings was admitted, thereby leading to a conviction. Subsequently, Raymond Cens filed a civil suit against the psychiatrists alleging assault and illegal search. However, it was decided that the board had used routine psychiatric procedures and since the actual physical damage to the defendant was nominal, the psychiatrists were acquitted. At the time, this case created quite a stir and the Council of the Paris Bar Association had passed a resolution against the use of drugs during interrogation. Similar observation was followed in subsequent cases of State v. Hudson10, wherein it was held that testimony of this character - barring the sufficient fact that it cannot be classified otherwise than a self-serving declaration - is, in the present state of human knowledge, unworthy of serious consideration. In State v. Lindemuth,11 the testimony of a psychiatrist was not admitted when he wanted to show that the answers given by a defendant while under the influence of sodium pentothal supported the defendant's plea of innocence in a murder case. Herein the honourable Court held that, Until the use of the drug as a means of procuring the truth from people under its influence is accorded general scientific recognition, we are unwilling to enlarge the already immense field.

10

314 Mo. 599 (1926) 56 N.M. 237 (1952)

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Further in case of Lindsey v. United States12, it was held that before a prior consistent statement made under the influence of a sodium pentothal injection could be admitted as evidence, it should be scientifically established that the test is absolutely accurate and reliable in all cases. Although the value of the test in psychiatric examinations was recognised, it was pointed out that the reliability of sodium pentothal tests had not been sufficiently established to warrant admission of its results in evidence. It was stated that Scientific tests reveal that people thus prompted to speak freely do not always tell the truth To further discuss the validity of the induction of the truth serums, M. Dugan v. Commonwealth of Kentucky could be referred to wherein it was held that no court of last resort would actually recognised the admissibility of the results of truth serum tests, the principal ground being that such tests have not attained sufficient recognition of dependability and reliability. Lastly in this regard case of Townsend v. Sain13, could be discussed. It was ascertained in this case that a confession induced by the administration of drugs is constitutionally inadmissible in a criminal trial. If an individual's `will was overborne' or if his confession was not `the product of a rational intellect and a free will', his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement. Legality of these tests in regard with Selvis case14 Right against Self-Incrimination The first concept to be discussed under this case is that of article 20(3) of the constitution that deals with self incrimination. The characteristic features of this principle are that: The accused is presumed to be innocent, That it is for the prosecution to establish his guilt, and That the accused need not make any statement against his will

Further inducing a person to agree to a crime by injecting a drug further goes against the maxim Nemo Tenetur se Ipsum Accusare that is, No man, not even the accused himself can be compelled to answer any question, which may tend to prove him guilty of a crime, he has been accused of. The application of narco analysis test involves the fundamental question pertaining to judicial matters and also to Human Rights. The legal position of applying this technique as an investigative aid raises genuine
12

237 F. 2d 893 (9th Circ. 1956) 372 US 293 (1963)

13

14

2010 (7) SCC 263

issues like encroachment of an individuals rights, liberties and freedom. In narco test subject is psychologically induced with the injection of chemicals and thus any information obtained by such inducement and test is in violation of his fundamental right under art 20(3) of the Constitution. Narco analysis constitutes mental torture and it leads to the subject to a semi conscious state where he has no control over his own mind and thinking. It has been proved by scientific experimentation that if a person is administered with such drugs it may suppress his reasoning or power to think. The test includes interference with the nervous system of the subject at molecular level. Thus completely blocking his nerves impulses and imposes a blanket of unconsciousness over his brain, where his brain has no control over his own activities and his own words do not correspond to his imagination and beliefs which might be the truth and what he states in that twilight sleep like condition might be only what is imposed on his mind during that semi conscious state. Thus the test signifies the playing with the life and mind of an individual subjected to it and thus violates the right to life and liberty under Article 21.15 Article 20(3) - Article 20(3) embodies the privilege against self incrimination. The privilege against self incrimination is a fundamental canon of British system of criminal jurisprudence and which has been adopted by the American system and incorporated as an article of its constitution. The privilege against self incrimination was inserted in the U.S. Constitution by the Fifth Amendment which provides that:16 No person.shall be compelled in any criminal case, to be witness against himself. The privilege against self-incrimination enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice. The principle of immunity from self incriminating evidence is founded on the presumption of innocence, the maxim Nemo tenetur seipsum accusare had its origin in a protest against inquisitorial and manifestly unjust methods of interrogating accused persons. It is not necessary that the actual trial needs to commence for an accused to avail this privilege. 17 Section 161 (2) requires a person, including an accused person, to answer truly all question (relating to the case under investigation) put to him by the investigative police officer, that section as well as Article 20(3) of the constitution give protection to such person against questions the answers to which would have a tendency to expose him to a criminal charge18. In Nandini Satpathy Case19 the Supreme Court has
15

William Coen, David J. Danelski, Constitutional Law- Civil Liberty and Individual rights, 5th Edn.Foundation Press, Pg. 813
16

id

17

Brown v. Walker (1896) 161 US 596, available at on http://www.guncite.com/court/fed/sc/161us591.htm last visited on September 21st April, 2012.
18

Kelkar, R.V., Criminal Procedure, Reprint 2002 , Eastern book company, Pg. 134

extensively considered the parameters of Section 161 (2)13 of the Cr. P.C. and the scope and ambit of Article 20(3) of the constitution. The Supreme Court in this case affirmed that the accused has a right to silence during interrogation if the answer exposes her/him into admitting guilt in either the case under investigation or in any other offence. Sec 24- 30 of the Evidence Act do take care of the constitutional rights by excluding from evidence all self-incriminatory statements whether voluntary or otherwise, Section 24 of the Evidence Act makes a confession by the accused irrelevant if caused by an inducement, threat or promise. If the statements are obtained as specified under sec 24, a doubt is cast on the genuineness of the fact deposed to as discovered in consequence of such statements and the support which the statements received from the discovery of the facts was destroyed or put in doubt. As the court found psychological third-degree methods and brutal ill-treatment, the facts discovered as a result of the induced statement became worthless and the constitutional question under art 20(3) did not survive.20 The International Community also recognises this right against self incrimination. This can be ascertained via means of the International Covenant on Civil and Political Rights (ICCPR)21, wherein Article 14(3)(g) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt and also the European Convention for the Protection of Human Rights and Fundamental Freedoms22, wherein Article 6(1) states that every person charged with an offence has a right to a fair trial and Article 6(2) provides that `Everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law' because compelling the accused person to testify would place the burden of proving innocence on the accused instead of requiring the prosecution to prove guilt. It is generally observed that these are cover up methods used by the investigation officers to cover up their faulty investigation. But it has been observed that frequent reliance on such `short-cuts' would eventually lead to compromise of the diligence required for conducting meaningful investigations. During the trial stage, the onus is on the prosecution to prove the charges levelled against the defendant and the `right against self- incrimination' is a vital protection to ensure that the prosecution discharges the said

19

1978 SCC (Cri) 236 Seervai H.M, The Constitutional law of India, Vol . 2, 4 ed. Universal Law Publications, pp. 1070-1071

20

21

Abraham,Anita et al , Human Rights Law: Essential National and International Documents, National Institute of Human Rights, National Law School of India University, pp. 149-166
22

European Convention for Protection of Human Rights and Fundamental Freedoms and its five Protocols, available at http://www.hri.org/docs/ECHR50.html, last visited on 20th April, 2012.

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onus. It was held in case of State of Bombay v. Kathi Kalu Oghad,23 that if is permissible in law to obtain evidence from the accused person by compulsion, then in that case there would be no need to tread the hard path of laborious investigation and prolonged examination of other men, materials and documents. It has rightly been observed that an abolition of this privilege of getting evidence from the accused by any way would be an incentive for those in charge of enforcement of law `to sit comfortably in the shade. Some accused persons at least, may be induced to furnish evidence against them which is totally false out of sheer despair and an anxiety to avoid an unpleasant disposition. Thus art. 20(3) is incorporated to protect the people from that malice. Invasion of personal liberty The issue that subsequently come into foreplay is whether such techniques impugn the privacy of individuals concerned. While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. The `rule against involuntary confessions' as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. An individual's decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy The question whether such issues result in cruelty. Any person who is forcibly subjected to the impugned tests in the environs of a forensic laboratory or a hospital would be effectively in a custodial environment for the same. Even if there is no overbearing police presence, the fact of physical confinement and the involuntary administration of the tests are sufficient to constitute a custodial environment for the purpose of attracting Article 20(3) and Article 21.24 The Universal Declaration of Human Rights25- further quantifies the act of cruelty under article 1 which defines Torture which means any pain or suffering, whether physical or mental, intentionally inflicted on
23

AIR 1961 SC 1808 Supra note 20 Supra note 21 at 133-137

24

25

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a person for such purposes as obtaining from him or a third person information or a confession,.., when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It empowers each state party under article 16to undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity Body of Principles for the Protection of all persons under any form of Detention or Imprisonment 26 adopted by the United Nations General Assembly, principles 1, 6 and 21 hold relevance regarding this issue. Article 21 says that-It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person. No detained person while being interrogated shall be subjected to violence, threats or methods of interrogation which impair his capacity of decision or judgment. The Geneva Convention relative to the Treatment of Prisoners of War27, Article 17, No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. Even though India is a signatory to this Convention, it has not been ratified by Parliament in the manner provided under Article 253 of the Constitution and neither there is a national legislation which has provisions analogous to those of the Torture Convention and therefore technically these provisions have no binding effect. However, these materials do hold significant persuasive value. A single stance of threat given by the investigators to conduct any of the impugned tests could prompt a person to make incriminatory statements or to undergo some mental trauma.

26

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

A/RES/43/173, available at http://www.un.org/documents/ga/res/43/a43r173.htm, last visited on 20th April, 2012

27

Geneva Conventions of 1949 and their Additional Protocols, available at http://www.icrc.org/eng/warand-law/treaties-customary-law/geneva-conventions/index.jsp, last visited on 20th April, 2012

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It is also possible that an individual may give his/her consent to undergo the said tests on account of threats, false promises or deception by the investigators. It is undeniable that during any of narcoanalysis tests a person in most conditions looses awareness of place and passing of time. In all conditions the judgment or decision making power of the person concerned gets impaired. It can be ascertained that the compulsory administration of the impugned techniques constitutes `cruel, inhuman or degrading treatment' in the context of Article 21. It shall be realised that a forcible intrusion into a person's mental processes is also an affront to human dignity and liberty, often with grave and long-lasting consequences. Right to fair trial as an essential component of `personal liberty' The involuntary administration of any of the impugned tests can lead to a situation where such legal advice becomes ineffective. For instance even if a person receives the best of legal advice before undergoing any of these tests, it cannot prevent the extraction of information which may prove to be incriminatory by itself or lead to the subsequent discovery of incriminating materials. Since the subject has no conscious control over the drug-induced revelations or substantive inferences, the objective of providing access to legal advice are frustrated. At the stage of trial, the prosecution is obliged to supply copies of all incriminating materials to the defendant. But reliance on the impugned tests could curtail the opportunity of presenting a meaningful and wholesome defence. If the contents of the revelations or inferences are communicated much later to the defendant, there may not be sufficient time to prepare an adequate defence. It was observed that there is no guarantee that the drug- induced revelations will be truthful. The questionable scientific reliability of these techniques comes into conflict with the standard of proof `beyond reasonable doubt' which is an essential feature of criminal trials. The credibility of experts who are involved in administering the impugned techniques is always doubtful and it is widely accepted principle for evaluating the validity of any scientific technique that it should have been subjected to rigorous independent studies and peer review. Because the persons who are involved in the invention and development of certain techniques are perceived to have an interest in their promotion. Hence, it is quite likely that such persons may give unduly favourable responses about the reliability of the techniques in question. If the investigators could justify reliance on these techniques, there would be an equally compelling reason to allow the indiscrete administration of these tests at the request of convicts who want re-opening of their cases or even for the purpose of attacking and rehabilitating the credibility of witnesses during a trial. Need for these tests

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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. With the growth and development of society the nature of the crime has been also changing and diversifying. Today, guardians of law heavily depend on various technologies and advancement of science to help them in their fight against crime. There have been various advancements in forensic science that has specially been welcomed in criminal investigation. At the same time every technology or knowledge created can be used of misused by the user. Development and application of such scientific developments in criminal investigation system is a necessary requirement of present times but proper care is needed to be taken in their application as evidence in law. As science has outpaced the development of law or at least the laypersons understanding of it, there is unavoidable complexity regarding what can be admitted as evidence in court. Narco analysis is one such scientific development that has become an increasingly, perhaps alarmingly, common term in India28. A critical task of the criminal justice system is to determine who has committed a crime. The key difference between a guilty party and an innocent suspect is that the perpetrator of the crime has a record of the crime stored in their brain, and the innocent suspect does not.29 With crimes going hi-tech and criminals becoming highly trained professionals, the use of narco analysis by the investigating officials can be very useful. However, even under the best conditions, this torturous test could result in an output contaminated by deception, fantasy and garbled speech. The drafting committee on National Criminal Justice System Policy headed by Prof. N. R. Madhavanan has recommended various measures to be taken up by the Govt. for effective management of not only traditional Forensic Science requirements but also to overall S & T[ Science and technology] needs of Criminal Justice System to raise the levels of capability and sophistication. The drafting committee recommended that 30The evidence Act may need to be amended to make scientific evidence admissible as ,substantive evidence rather than opinion evidence and establish its probative value, depending on the sophistication of the concerned scientific discipline. Scientific techniques and procedures used have to be validated by appropriate agencies and professionally recommended for acceptance as evidence. There is urgent need

28

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) referred to in Lakshman Sriram, Narcoanalysis and some hard facts, Frontline, Kasturi & Sons Ltd .available on www.pay.hindu.com/ebook%20%20ebfl20070518part3.pdf , last visited on 20 th April,2012.
29

Sharma, B.R, Forensic science in criminal investigation and trials, 6 ed, p. vi

30

National Criminal Justice System Policy , available at www.demotemp8.nic.in/mha/pdfs/DraftPolicyPaperAug.pdf , last visited on 20th April,2012.

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for integrated, planned and co-ordinated development of the forensic capabilities of those institutions if they were to make a difference with quality and quantity of criminal investigations and crime control strategies in the country. Criminal justice in the changed scenario demands it and the country with its growing economy deserves it. There is no doubt with the demand for scientific criminal investigations are increasing by the day. The main reasons are31: 1. There is a sea-change in the social scenario. High connectivity with the higher-ups (leaders, officials), the acceptability of the corrupt and the corruption, rapid and mobile communication facilities, extremely rapid mobility, and incognitio existence in dense cities have brought in the invisible and the non-tractable anonymous criminal in the field. 2. The scientific criminal is abroad. 3. The traditional tools of proof are becoming non- available, non-reliable obsolete and ambiguous. The judiciary requires now every high standard of proof. 4. The computer, the internet and cyber space have brought in highly complex crimes. 5. The scientific methods are efficient, certain, specific, rapid, verifiable and unbiased. 6. The scientific methods are always available, applicable in all situations and investigations. Further in the case of Santokben Sharmanbhai Jadeja v. State of Gujarat32, the high court of Gujarat dealt with the need for narco analysis test and brain mapping test and the advantages of the aforesaid tests. The court said that; The field of criminology has expanded rapidly during the last few years and the demand for supplemental methods of detecting deception and improving the efficiency of interrogation have increased concomitantly. The Investigating Agency has statutory right to investigate the crime and to find out the truth and to reach to the accused. Narco Analysis Test for criminal interrogation is valuable technique which would profoundly affect both the innocent and the guilty and thereby hasten the cause of justice. Conducting of Narco Analysis Test and Brain Mapping Test on the accused is in process of collection of such evidence by the Investigating Agency. Section 161 of the Criminal Procedure Code enables the police to examine the accused also during the investigation. Criminal justice system cannot function without the cooperation of the people. Rather, it is the duty of every person to assist the State in the detection of the crime and bringing criminal to justice. Withholding such information cannot be traced to

31

Sharma, B. R., Scientific Criminal Investigation, 2006 Edition, Universal Law Publishing Co. Pvt. Ltd. 2008 Cri. L J 68

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the right to privacy, which itself is not an absolute right.33 It is the statutory duty of every witness, who has the knowledge of the commission of the crime, to assist the State in giving evidence.34 If these tests are permitted, it would assist the Investigating Agency in finding out the truth and find out the real culprit of the commission of an offence. When the Investigating Agency is absolutely in dark and after all efforts and exhausting all the alternatives still there is no further headway in the investigation, the aforesaid two tests would help the Investigating Agency to further investigate the crime . Such scientific tests are prayed only as a last resort after exploring all the alternatives and when the Investigating Agency is not in a position to reach the accused and find out the truth. If the nature of the offence alleged to have been committed by the accused coupled with the circumstances under which it is committed affords reasonable grounds for believing that an examination of the person will afford evidence as to the commission of the offence then such tests are necessary. The congressional investigation of September 11th in US has also utilized the potentials of Narco analysis. The prime accused Abu Zubaydah was picked up by CIA during 2003 and the confessions made by him during Sodium pentathol aided interview; are now available in the WEB. However, it is not necessary to traverse about the shocking revelations made. In pursuance of this, it may be seen from a book entitled Confessions of a terrorist by Gerald Posner [2003] that US administration privately believes that the Supreme Court implicitly approved using such drugs in matters where public safety is at risk.35 ARUSHI MURDER CASE: A Case Study36 Brief summary of the case: On the morning of May 16, 2008, Aarushi Talwar (May 24, 1993 - May 15, 2008), the 14-year-old daughter of a successful dentist couple, was found dead with her throat slit in her parents' home at Jalvayu Vihar in Noida, a posh suburb of Delhi. Suspicion immediately fell on the family's live-in man-servant, Yam Prasad Banjade alias Hemraj, a 45-yr-old Nepalese national, who was found missing from the home. Immediately declaring Hemraj as the prime suspect, the Noida police announced a reward for information
33

State v. Dharmapal MANU/SC/0260/2003 State of Gujarat v. Anirudha Singh MANU/SC/0749/1997

34

35

S.Malini & B.M.Mohan Forensic Science Laboratory, Bangalore, Narco Analysis, available on www.bprd.gov.in/rightreaddata/mainlinkfile/file1536.pdf, last visited on 20th April, 2012.
36

The House we Blew, available at

http://www.tehelka.com/story_main48.asp?filename=hub190211THE_HOUSE, last visited on 22nd April, 2012. 16

leading to Hemraj's apprehension and arrest. In addition, a police party was dispatched to his hometown in Nepal, in hopes of apprehending him there. A post-mortem was conducted on Aarushi's body on May 17, 2008, after which it was cremated. After a disorganised, long-drawn and completely bungled up investigation, the police finally arrested Dr. Rajesh Talwar, the father of the deceased girl, on May 23, 2008, charging him with having committed the double murder. His wife, Dr. Nupur Talwar, stoutly defended her husband, accused the Noida police of framing him, and requested Uttar Pradesh chief minister Mayawati to transfer the case to the Central Bureau of Investigation (CBI).The Central Bureau of Investigation took over the investigation into the murders of Aarushi and Hemraj on June 1, 2008, forming a 25-member team in a resolute attempt to crack the case.

Use of lie detector tests in the case: The instant case is not only the latest case relevant in the issue and wrt to the use of scientific tests in the investigation of cases but also one of the unique cases in the sense that the CBI took the aid of these test not once or twice but many times and still the case is still unsolved till today. Dr Talwar was made to undergone this test twice, Mrs. Talwar and Domestic Help Rajkumar too faced it twice. Other accused Krishna was also subjected to the lie detector test. Vijay Mandal (alias Sambhu) the servant one of the neighbors of the Talwars was arrested by the CBI and subjected to the test.

Outcome: The CBI subjected Krishan, compounder of Dr Rajesh Talwar to a Narco test, but was unable to achieve any breakthrough. CBI has said that Krishna replied to most of the questions asked by the investigating agency by saying I dont know. Krishna pleaded innocence before the Narco test. The CBI wasnt able to extract anything out of him with regard to the weapon used in the murders of Dr Talwars daughter Aarushi & servant Hemraj. However, Krishna did confirm to the CBI that Rajesh Talwar was stressed few days before the murders. He also revealed that Talwar used to send him out of clinic quite often for one or the other reason. Krishnas Narco test was conducted at the Forensic Science Laboratory in Bangalore. The CBIs DIG has reportedly been removed from the case for shoddy investigation into the twin murders. The CBI had subjected Krishna to two lie detector tests & a polygraphic test. A news report on some TV channels suggested that CBI had some breakthrough on Rajkumar as the culprit and had confessed during narcoanalysis test. He was learned to have committed this along with Krishna, Sambhu and allegedly Hemraj also. The reason told by him was lust and killing Hemraj for fear that Hemraj might have disclosed information .The tests of Mr Talwar.and Nupur Talwar were almost inconclusive and hence they were 17

made to face this test once again. But inspite of all these the outcome wasnt in a single direction and the answers to most of the questions were I dont Know.

PIL Against the application of narco test: The Supreme Court refused to entertain a petition seeking to restrain CBI from conducting narco-analysis test on the suspects in Noida's Arushi-Hemraj murder case. The petition was filed by All India Lawyers Joint Action Committee, an unregistered body of lawyers. Refusing to entertain the plea, a bench headed by Justice Altamas Kabir said the lawyer's body had no locus standi in the case as it was not a registered entity in law and, therefore, the petition was not maintainable.

Comments: The question here is about investigating caliber of investigating officers. The poorly conducted investigation was covered up by series of scientific tests on various people. It is thus observed that these procedures shall not be used as defense of poorly done job. They should be utilized at places where there is dire requirement for the same and that the only mode of finding the truth. Present state of scientific tests37 The Supreme Court has delared compulsory brain-mapping, narco analysis and polygraph test as illegal. However, it maintained that if anything is obtained by the investigators from such techniques in which a person had volunteered, the agencies can use that for further probe. We are of the considered opinion that no individual can be forced and subjected to such techniques involuntarily, and by doing so it amounts to unwarranted intrusion of personal liberty, a Bench headed by Chief Justice KG Balakrishnan said. The apex court said that involuntarily subjecting an accused, a suspect or a witness to such techniques violates Article 20 (3) of the Constitution, which prohibits selfincrimination. The judgement assumes significance as probe agencies have used narco-analysis, brainmapping and polygraph tests in a number of high-profile cases involving fake stamp paper kingpin Abdul Karim Telgi, Nithari killings accused and Aarushi murder case suspects as well as parents of the teenager. The Bench, also comprising Justices RV Raveendran and Dalveer Bhandari, observed that forcing an individual to such methods of investigation violates the scheme of legal process. Even if a person is
37

No Narco Test without consent: Supreme Court, available at http://www.financialexpress.com/news/no-narcotest-without-consent-supreme-court/615551/1, last visited on 22nd April, 2012.

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subjected to such a mode of investigation on consent, the result of the test cannot be an admissible piece of evidence, it said. The Bench said subjecting a person to such techniques amounts to intrusion of personal liberty under Article 21 of the Constitution. The court further observed that in conducting the polygraph test, the investigating agencies have to follow strictly the guidelines laid down by the National Human Rights Commission (NHRC). During the hearing on the matter, the Centre had submitted that these tests provided some clues to the investigating agencies and did not have any evidentiary value per se. Even Law Commission was of the opinion that such a provision was necessary for effective investigation and it would not affect the fundamental rights, it had said, adding no invasive procedure is involved in using modes of investigation like lie detector and the brain mapping tests. It had argued that the use of narco analysis was of particular relevance in the context of terrorist-related cases, conspiracy to commit murder and other serious offences in which probe agencies got vital leads for follow up action. But still it has been maintained that it could not be used in cases where consent of accused has not been there. Conclusion With the growth and development of society the nature of the crime has been also changing and diversifying. The developments and advancements in science and technology should be utilized to the fullest for effective aids to interrogation and investigations in criminal justice system. Though National Human Rights Commission has provided guidelines for the conduct of Polygraphic tests, but this does not sufficiently serve the purpose of protection of accused persons against these tests. As these scientific tests involve application of advanced technologies, there is a need for well framed rules and laws for the conduct of these tests under Criminal Law of the country.At the same time it should be taken care of that 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. The criminal justice system should be based on just and equitable principles. In spite of the fact that Narco Analysis is not so reliable method, its significance and necessity in the present scenario cannot be in any way negated but yet it has its own controversies and concerns. On the one hand with the scientific advancement methods, like Narco Analysis, provide an effective and direct investigation in to the core of the case but on the other hand the test directly attacks the fundamental right enshrined under art 20(3) and the extended meaning of art 21 of the constitution. So the extent of its significance and application needs to be settled. Supreme Court has not yet come out with any concrete decision on the point. In a situation where narco analysis is gaining judicial acceptances and supports despite being an unreliable & doubtful science, we have to seriously rethink about its legal and 19

constitutional validity from human rights perspective. The correct approach would be somewhere between the two conflicting issues. The decision given by the apex court in the case of Ramchandra Reddys38 paves the way to some extent. The accused should not be compelled to undergo the test against his will. Further the test is not prohibited by art 20(3) of the constitution. It is the result which if used as an evidence against the accused would violate his fundamental right. 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 whatsoever39.

38

(1965) 2 SCWR 464 Available on http://www.nerve.in/news:253500125425, last visited on 22nd April, 2012.

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