Narco - Analysis - Procedure - Scientificity ? - Reliability ? - Legality ?
The
Narco-Analysis has become an increasingly, perhaps alarmingly, common term in
India. This technique has garnered support from certain State Governments as
well as the Judiciary in India. There has been a debate for quite a long time
whether this can be considered as a scientific and reliable method. An attempt
has been made here to critically discuss this technique and to evaluate its
admissibility as evidence in the courts.
Introduction
- The
search for effective aids to interrogation is probably as old as man’s need to
obtain information from an uncooperative accused (or subject) and as persistent
as his impatience to short cut any tortuous path.
- In
the annals of police investigation,
physical coercion has, at times, been substituted for painstaking and
time-consuming inquiry in the belief that direct methods produce quick
results.
- But,
hardened and manipulative perpetrators often fail the interrogation thus,
information and admissible evidences are hard to come
by.
- With
the advancement of our knowledge or the reapplication of existing knowledge in a
newer specific area has resulted in the emergence of techniques, such as
Polygraphy, Brain-mapping and Narco-analysis.
- The
term ‘Narco-analysis’ is derived from the Greek word ‘Narkë’ (meaning
“anesthesia or torpor”, and is used to describe a diagnostic and
psychotherapeutic technique that uses psychoactive
drugs, particularly barbiturates, to induce a state of stupor in which mental
elements with strong associated effects come to surface, where they
can be exploited by the therapist (or investigating
agency).
- The
term ‘Narco-analysis’ was coined by Horseley, but the Narco-analysis first
reached the mainstream in 1922, when Robert House, a
Texas Obstetrician used the drug scopolamine on two
prisoners.
- But,
the therapeutic use was first documented by Dr. William Blackwenn (1930).1
Others 2,3,4 demonstrated the usefulness of such drug in procuring
diagnostically or therapeutically vital information, and to provide patients
with a functional respite from catatonia or mania.
Active Chemical Substances
- Sedative
and hypnotics that alter higher cognitive function by depressing
the Central nervous system include ethanol, scopolamine, quinnuclidinyl
benzilate, temazepam and various barbiturates, such as sodium thiopental
(commonly known as sodium pentothal), Sodium amytal (amobarbital), seconal are
particularly worth mentioning.
- Scopolamine
(an alkaloid of atropine group and is scopine tropate) was the first chemical
substance, but nowadays, the barbiturates, particularly the sodium pentothal, is the drug of choice for the
Narco-analysis.
The Procedure
- The
Narco-analysis is conducted by the administration of a hypnotic-sedative, such
as sodium pentothal, intravenously into the
subject.
- The dose is calculated as per kg. of the body
weight of the subject and the drug is pushed by an Anesthetist (a medical
doctor) at the rate of 4ml/min (100mg/min) of a 2.5% solution of sodium
pentothal.
- The
injection may be preceded by the administration of an cholinergic agent and a
test dose of the said drug.
- The dose is dependent on the person’s sex, age, health,
physical condition, tolerance and
idiosyncrasy.
- The
rate of administration is controlled to drive the subject (accused) slowly into
a hypnotic trance resulting in a lack of inhibition.
- The
subject is then interrogated by the Psychiatrist/Forensic Psychologist in
conjunction with investigating agency.
- The
anesthesia doctor monitors and maintains the hypnotic
trance condition of the subject.
- The
revelation made during this stage are recorded, both in video and audio
cassettes.
- The
Forensic Psychologist prepares the report about the revelations, which will be
accompanied by the audio-video recordings.
- The
strength of the revelations, if necessary, is further verified by subjecting the
person to psychological/criminal profiling, polygraphy and/or the Brain-mapping
tests.
- The Narco-analysis is normally conducted in Government Hospitals or in Forensic Lab where such facilities are created.
- However, personal consent of the
subject and a court order are required for the conduct of the
test.
- In Narco-analysis test, the person’s
inhibitions are lowered by the depressing action of the drug at the
CNS.
- In
such sleep-like state (or hypnotic trance), it becomes difficult, though not
impossible, for him to lie or manipulate the answers.
- Revelations
made by the person under such condition are usually further corroborated by the
investigating agencies, and reconstruction of the crime is
done.
Discussion
- Narco-analysis
has become an increasingly, perhaps alarmingly, common term in
India.
- This
practice has also garnered support from certain State Governments as well as the
Judiciary.
- While
expert studies and court opinions available internationally have granted that
there may be some use in Narco-analysis, but the overwhelming evidence is that
it is by no means a reliable science.
There
are two main issues in the acceptance of Narco-analysis test in the Criminal
Justice Administration:
<!--[if !supportLists]-->1.Whether Narco-analysis is a reliable
scientific test?
<!--[if !supportLists]-->2. What should be its legal
status?
Reliability ???
- A scientific
test is one which is based on a solid scientific principle and always
give results, which are precise & accurate, reproducible and cross
verifiable.
- Narco-analysis
basically is a test in the domain of psychology to provide functional respite
from some psychological disorders.
- There
is no direct proven relationship between the
administration of so-called truth drugs and revelation of
truth.
- The
CIA has admitted that the actual content of what comes out during the
Narco-analytic interrogation can be psychotic
manifestation…hallucinations, illusion, delusions or
disorientation.
- Psychiatrists
hold that some 50% of all individuals are suggestible even while fully
conscious, meaning they can be made to believe events that never actually
happened.
- Thus,
under the effect of drug, the patient may say
things that he wished were true and not that were necessarily
true.
- Further,
the effect of the drug should remain same on all subjects, but it varies with
the age, sex, health and general conditions of the person thus may give
different outcome.
- In
the US, where science often interfaces uncomfortably with the law, the Supreme
Court offered four criteria, part of the Daubert standards (1993), by which to
judge the credibility of a scientific principle held by a minority of
practitioners: hypothesis testing; peer review and publication; knowledge of
error rates; and acceptability in the general scientific
community.
- In
India, the Narco-analysis is being mainly done at Forensic Labs at Bangalore and
Gandhinagar.
- As
per one conservative estimate, both laboratories collectively had carried out
the Narco-analysis of around 600 persons by now, but the results of these tests
and their parameters were never peer reviewed and the data never published in international research
journals for the scientific scrutiny.
- Further,
no controlled studies of sufficiently large relevant samples of criminals are
available; no authentic data and no statistical probability data are
available.
- In the absence of above, how
Narco-analysis can be regarded as a scientific and reliable
technique?
- American
Journal of Psychiatry prohibited the use of Narco-analysis for the purpose of
police investigation (111,283-88).
Legal Status
- Regarding
the legal status of Narco-analysis, one needs to interpret carefully the Article 20(3) of the Indian Constitution and
Section 161(2) of the Criminal Procedure Code,
1973.
- The
application of Narco-analysis test involves the fundamental question pertaining to the judicial matters and
also Human Rights.
- The
legal position of applying this technique as an investigative technique raises
genuine issues like encroachment of an individual’s rights, liberties and
freedom.
- Subjecting
the accused to undergo the test as has been done by the investigative agencies
in India, is considered by many as a blatant
violation of Article 20(3) of the
Constitution.
- It
also goes against the “Maxim Nemo Tenetur Se Ipsum Accusare”,
i.e. “No person accused of any offence shall be
compelled to be a witness against himself.”
- Thus,
Article 20(3) gives privilege to the accused or any person against
self-incrimination which, in fact, is a fundamental basis of Common Law of
Criminal Jurisprudence.
- Thus,
the unvoluntary confession or other vital information obtained from the accused
of the crime by pushing him into a state of hypnotic trance amounts to
self-incrimination, thus violates the Article 20(3) of the
Constitution.
- Such
evidence thus cannot be made admissible in the courts until some amendments to
the said provision occur.
- The
right against forced self-incrimination also widely known as the
right-to-silence in enshrined in the Section 161(2) of the Criminal Procedure
Code, 1973, which state that “such person shall be bound to answer truly all
questions put to him by such officer, other than questions the answers to which
would have a tendency to expose him to a criminal charge or to a penalty or
forfeiture”.
- Thus,
the administration of test, like Narco-analysis
amounts to forcible intrusion into one’s mind, thereby nullifying the validity and legitimacy of the
right-to-silence.
- Thus,
in the light of above facts, the Narco-analysis test neither can be
considered as a scientific and reliable test nor
it satisfies the existing golden principles
of Indian Laws and Criminal
Jurisprudence.
Conclusion
- Though
nobody wants that terrorists and hardened criminals escape from the clutches of
law, but it would be equally unjustified, if knowingly, we resort to such a
test, which is not true to science and law.
- In
India, Narco-analysis is gaining some judicial acceptance (for inadvertent
reasons) and supports from some enthusiatic Law Enforcement Officers despite
being an unreliable and doubtful method.
- We
have to seriously debate about its Legal and Constitutional validity from human
perspective.
- Narco-analysis
may yield useful information at times, but such information’s can also be
obtained by enhancing investigative capabilities, better policing and training
of the personnel.
- It
is the time for Law Enforcement personnel to have a sincere
introspection.
- It
is an invasive technique, which amounts to a sophisticated version of the
deplorable third-degree method.
Courtesy: Ministry of Home Affairs
Recent Supreme Court judgment on Narco Analysis and Brain mapping terming it "unconstitutional"
The
Supreme Court judgment on May 5, 2010 related to the involuntary administration
of narco analysis for the purpose of improving investigation efforts in
criminal cases was questioned on the account of violation of fundamental rights
such as:
<!--[if !supportLists]-->o
<!--[endif]-->‘Right against self-incrimination’ enumerated in Article
20(3) of the Constitution, which states that no person accused of an offence
shall be compelled to be a witness against himself/herself,
and
<!--[if !supportLists]-->o
<!--[endif]-->Article 21 (Right to life and personal liberty) has been
judicially expanded to include a ‘right against cruel, inhuman or degrading
treatment’.
Narco
Analysis also raises serious concerns related to the professional ethics of
medical personnel involved in the administration of these techniques and
violation of human rights of an individual. Concerns regarding human rights
violations in conducting DDTs were raised long back and the National Human
Rights Commission had published Guidelines in 2000 for the Administration of
Polygraph tests. However, only few of the investigating agencies seen to follow
these guidelines.
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