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?

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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.

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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 narkç (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.

Procedure involved in Narco-analysis

1 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 at http://www.cidap.gov.in/documents/narcoanalysis%20and%20truth%20serum_129200522355%20PM.pdf, last visited on 20th April,2012

3 Kumari, S. Kusuma, Narco Analysis Right to Self Incrimination vs. Public Interest, (2007) Cri LJ (June) pp. 137- 141, All India Reporter, Nagpur, 2007. p.138.

3

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 person’s 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

behavioural changes and the sensors and a wave pattern in the graph expose this. Deviation from the

4 Acharya,Subhojyoti, Is Narco Analysis a Reliable Science? – Present Legal Scenario In India, available at http://www.legalserviceindia.com/article/l176-Narco-Analysis.html5 id

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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 subject’s 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 suspect’s brain would not

have stored or recorded certain information, which an actual perpetrator’s 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

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 `memory-

6 id

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hardening' 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. C ountermeasures

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.

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.

7 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)

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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”.

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

10 314 Mo. 599 (1926)

11 56 N.M. 237 (1952)

12 237 F. 2d 893 (9th Circ. 1956)

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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 Selvi’s 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

issues like encroachment of an individual’s 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

13 372 US 293 (1963)

14 2010 (7) SCC 263

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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

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

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

19 1978 SCC (Cri) 236

9

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

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.

20 Seervai H.M, The Constitutional law of India, Vol . 2, 4 ed. Universal Law Publications, pp. 1070-1071

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.

23 AIR 1961 SC 1808

10

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

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 16-

to 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

24 Supra note 20

25 Supra note 21 at 133-137

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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 Imprisonment26

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.

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'

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/war-and-law/treaties-customary-law/geneva-conventions/index.jsp, last visited on 20th April, 2012

27

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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

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

13

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 30-

The 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

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.

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 20th 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.

31 Sharma, B. R., Scientific Criminal Investigation, 2006 Edition, Universal Law Publishing Co. Pvt. Ltd.

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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

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.

32 2008 Cri. L J 68

33 State v. Dharmapal MANU/SC/0260/2003

34 State of Gujarat v. Anirudha Singh MANU/SC/0749/1997

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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

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

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.

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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 don‟t know”. Krishna pleaded innocence before the Narco test. The CBI wasn‟t able

to extract anything out of him with regard to the weapon used in the murders of Dr Talwar‟s 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. Krishna‟s Narco test was conducted at the Forensic Science Laboratory in Bangalore. The CBI‟s

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 narco-

analysis 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

made to face this test once again. But inspite of all these the outcome wasn‟t in a single direction and the

answers to most of the questions were “I don‟t 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

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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 self-

incrimination. The judgement assumes significance as probe agencies have used narco-analysis, brain-

mapping 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

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

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

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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

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

Reddy’s38 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

39 Available on http://www.nerve.in/news:253500125425, last visited on 22nd April, 2012.

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