What is Narco-analysis and what is the legal sanction behind it?

Question: What is Narco-analysis and what is the legal sanction behind it?

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Answer

Narco Analysis is a Deception Detection Test (DDT), similar to polygraph and brain-mapping that have important clinical, scientific, ethical, and legal implications. The DDTs are useful to know the concealed information related to crime.

The term Narco-analysis comes from the Greek word “narkc”, which means anesthesia or torpor. Narco-analysis is a diagnostic and psychotherapeutic technique that involves the use of psychotropic drugs, especially barbiturates, to induce a state of sedation in which mental elements with strongly associated effects rise to the surface and can be manipulated by the therapist.

However, the use of Narco Analysis amounts to self-incrimination which is prohibited under Article 20(3) of the Indian Constitution. The provision says that no one can be compelled to give evidence against himself or to be a witness against himself, and therefore, any statement given during the narco-analysis test cannot be considered evidence in the constitutional framework of the country.

The infamous case of State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808: (1962) 3 SCR 10 court held that when police are carrying out the polygraph test without the consent of accusing is a clear violation of the right against self-incrimination enshrined under Article 20(3) of Indian Constitution. Bombay High Court had to clarify that If the accused is compelled to give a polygraph test against his will in order to get evidence then is it a violation of the right to silence hence the court held that the right against self-incrimination only works at the time of court proceedings and not to police interrogation.

In a 2010 landmark judgment of Smt. Selvi & Ors v. State of Karnataka [2010(7) SCC 263], the apex court of India has clearly stated that DDTs cannot be administered without consent. While in the earlier judgments, the courts were in favor of obtaining evidence through the use of DDT methods. In this judgment, the involuntary administration of DDT for the purpose of improving investigation efforts in criminal cases was questioned on the account of violation of fundamental rights such as:

“Right against self-incrimination’ enumerated in Article 20(3) of the Constitution, which states that no person accused of an offense shall be compelled to be a witness against himself/herself, and

Article 21 (Right to life and personal liberty) has been judicially expanded to include a ‘right against cruel, inhuman or degrading treatment.”

The Supreme Court ruled in Selvi v. State of Karnataka that using narcotics analysis, brain mapping, and polygraph tests on accused, suspects, and witnesses without their consent was unethical and a breach of their “right to privacy.”

“We hold that no individual should be forcefully subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise,” said a three-judge bench headed by Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and J.M. Panchal in a 251-page judgment.

This will be an unjustified attack on one’s personal liberty.

The Supreme Court has put certain guidelines of the which is needed to be followed before enabling a polygraph analysis test and also said that the consent of the accused needs to be taken before enabling polygraph analysis otherwise it will be a clear infringement of the right against self-incrimination of the Indian Constitution.

Thus the current legal stand of the Hon’ble Supreme Court behind the sanction of Narco Analysis is that compulsory exposure to the narco analysis test would be violative of Article 20(3) of the Constitution. A person cannot be deprived of his protection against self-incrimination.

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