ACKNOWLEDGEMENT Constitutional Law is the greatest gift ever given to the Indian republic. The most detailed document in the world contains fine aspects, which regulate and make the life of the people, worthwhile. The constitution, to cover every bit of the life of people and the country and, to gain the desired result, inevitably became bulky and intricate.
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INTRODUCTION
It is far pleasanter to sit comfortably in the shade rubbing red pepper in a poor devils eye than to go about in the sun hunting up evidence.
The most laborious part of Criminal investigation is definitely extracting information from an uncooperative source and thus investigators were always delighted by effective aids to interrogation. This quest for alternative methods for painstaking and time consuming interrogative modules have at times succumbed to physical coercion and also police excesses. However creative minds around the world engineered new scientific tools of interrogation like the narco analysis which is remarkable development in scientific investigation.
Now in India, Narcoanalysis is being mainstreamed into criminal investigations and has also passed under the judicial scanner. The application of such tests has become increasingly, perhaps alarmingly, common in India. But arent we bit hasting in arriving conclusions? Do we need a rethought on seemingly remorseless application of this so called sinister discovery? Ultimately are we letting our precious human dignity to be prejudiced in laboratory?
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WHAT IS NARCO ANALYSIS
Etymologically 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. Though Horseley is widely acclaimed to have coined the term narco-analysis, the term was popularised in 1922, when Robert House, a Texas obstetrician used the drug scopolamine on two prisoners. Other terms have also been used, such as narco-synthesis, chemical psychoanalysis and psychosomatic narco-analysis.
The test is conducted administering barbiturates most often Sodium Pentothal, to lower a subjects inhibitions and the information is extracted from the subject. In such a semi conscious state the subject is said to become incapable. Then efforts are made to obtain information about the crime. The answers are believed to be spontaneous, as a semi- conscious person is unable to manipulate the answers.
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NARCO ANALYSIS FROM CONSTITUTIPONAL STANDPOINT
Narco Analysis stands in strict violation of the Constitutional mandate of Fundamental Rights, which are the most essential and thus, inalienable rights guaranteed via the Constitution. Following is the section which uncovers the story of how this arbitrary test violates essential fundamental rights in broad daylight.
Violation of Article 21- Narco analysis is conducted by arbitrary injection of narcotic substances and subsequently the subject is compelled to answer the questions posed to him. It is a complicated procedure which has multiple adverse reactions as well as drastic side effect and may even cause even death of the subject. It is also stated by the learned authors that Laryngospasm may occur after parenteral barbiturate administration. The ability to maintain an airway is essential when ever parenteral barbiturates are used. In some cases barbiturates use is associated with development of exfoliative dermatitis or Stevens-Johnson syndrome. At the least the so called non- invasive procedure involves subjugation of person to unwanted narcotic substances. In State of Punjab v. Mahinder Singh Chawla 1 the Apex Court has held that the right to life includes right to health. Subjecting a person to an unsafe scientific test as part of investigation will amount to denial of right to health. Subjecting someone to this test and the procedure and side effects consequently thereafter, stands in complete abrogation of Right to Life, which is the most essential right and the strongest angle of the golden triangle of the Indian Constitution.
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Right to Privacy- The term Right to Privacy is generic term encompassing various rights recognized to be inherent concept or ordered liberty. The right to be left alone on right of a person to be free from unwarranted publicity is Right to Privacy. This Right to Privacy is implicit in the right to life and liberty guaranteed to the citizens of India by article 21 of the constitution of India. None can publish anything covering the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If done so, it will be violating right to privacy of person concerned and would be liable in an action for damages.
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Right Against Self Incrimination; Article 20(3)- Time and again this Drugged legal process to be legitimate, should be put under rigorous constitutionality tests and with extra caution. Its high time to analyze the constitutional imperatives in the light of Mystery and chemistry of Narcoanalysis. These tests are blatant violation of right against self incrimination enunciated in Article 20 (3) which says- No person accused of any offence shall be compelled to be a witness against himself.
The privilege against self-incrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice. It also 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.
In US constitution this right is recognised in Fifth Amendment. According Article 14 (3) (g) of the International Covenant on Civil and Political Rights(ICCPR)1966, in the determination of any criminal charge against him, everyone shall be entitled to the minimum guarantee, in full equality, not to be compelled to testify against himself or to confess guilt.
As early as in 1954 the Supreme Court in Sharma v Satish 2 held that if formal accusation has been made against the person, he can claim immunity from being compelled to make a self incriminating statement.
In another landmark decision, Nandani Satpathy v. PL Dani 3 the Supreme Court of India has widened the Scope of the Article 20 (3) to include 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. By the administration of these tests, forcible intrusion into ones mind is being
2 AIR 1954 SC 300 3 AIR 1978 SC 1025 8 | P a g e
resorted to, thereby nullifying the validity and legitimacy of the Right to Silence. The Apex Court upheld her pleas. The Court further held that the phrase compelled testimony must be read as evidence procured not merely by physical threats or violence but by psychic mental torture, atmospheric pressure, environmental coercion, tiring interrogatives, proximity, overbearing and intimidatory methods and the like. Since the narco examination does involve forceful intrusion in to the subjects mind, it undeniably comes under the prohibitive scope of the Article.
How ever the Indian Courts seems to be limited the scope of Article 20 (3) in the basis of Minimal Bodily Harm Doctrine. This approach is reflected in the Bombay High Courts verdict in Ramchandra Reddy and Ors. v. State of Maharashtra 4 , which upheld the legality of the use of P300 or Brain finger-printing, lie-detector test and the use of truth serum or narco analysis. According to Palshikar J. and Kakade J. these tests only involve minimal bodily harm.
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Violation of Article 14- Akin this test of transgression seemingly violates right to Equality as enshrined in Article 14 of Constitution. According to Bhagwati J. in EP Royappa v State of Tamil Nadu 5 - Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within traditional and doctrinal limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies, one belong to rule of law in a republic and while other, to the whim and caprice of absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to the political logic and constitutional law and there for violative of Art 14. Thus subjecting a suspect to arbitrary drug injection technique is infringement of Article 14. Since the procedure prescribed by law has to be fair, just and reasonable, it shall not be fanciful, oppressive and arbitrary, a procedure to be just and fair must embody the principles of natural justice 6
5 AIR 1974 SC 555 6 Maneka Gandhi v Union of India (AIR 1978 SC 597) 10 | P a g e
NO TO NARCO ANALYSIS STAMPED: THE SELVY CASE
In a major setback to investigating agencies, the Supreme Court (SC) on Wednesday ruled compulsory brain mapping, narco-analysis and lie detector tests unconstitutional as they violate individual rights. The Bench of chief KG Balakrishnan, CJ. and RV Raveendran and JM Panchal, JJ. Said- 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. Disposing of petitions filed by accused in Maharashtra, Karnataka and Andhra Pradesh, the bench said the tests can be administered to a person only with consent and even then National Human Rights Commission guidelines must be adhered to. The person needs to be assisted by a lawyer, his consent needs to be recorded before a magistrate, and he needs to be told about the implications of his consent and the fact that the information thus collected would not be used against him as evidence in court. But information or material collected with the help of a (voluntary) test can be admitted in court under section 27 of the Evidence Act.
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CONCLUSION
Lets stop professing this Ultravires discovery, stop scientific denial of precious human rights. The wrong process will never earn right results. In every reasonable sense, the Narco analysis is an unconstitutional and unscientific test, no matter its huge acceptance in the conviction market. Fundamental rights are not something to be experiment in laboratory, no matter what ever safeguards attached to it. It is to be noted that nations around the globe have deviated from this prohibitive path 7 . Yet we are pursuing it, as though it is the greatest scientific discovery of the millennium.
7 USA was the first to Prohibit Narco test in Criminal investigation