What is Narco-analysis Test?
A narco-analysis test is an interrogation method whereby a suspect of a crime is injected with a psychoactive drug under controlled conditions to suppress their reasoning power or the ability to determine what is good/bad for them.
What Happens when someone (accused) forced to undergo Narco- Analysis Test or Similar Test?
Forceful subjection of an individual to techniques, such as the narco-analysis test or similar test, violates personal liberty enshrined under Article 21 of the Constitution of India. Conducting such tests on persons accused of committing a crime raises serious questions, about the constitutional protection granted from compulsion to become a witness against oneself under Article 20(3).
In Selvi and Ors. v. State of Karnataka (2010) 7 SCC 263, the constitutional validity of narco-analysi test, along with similar tests like the polygraph test challenged.
After an elaborate discussion, Honourable Supreme Court (three-Judge Bench) held involuntary administration of this test to be hit by Articles 20(3) and 21 of the Constitution. The following principles came to be expounded:
8.1. Articles 20 and 21 of the Constitution are non-derogable and sacrosanct rights to which the judiciary cannot carve out exceptions;
8.2. Involuntary administration of narco-analysis and similar tests is in contravention of the protection given by Article 20(3) of the Constitution, i.e. the right against selfincrimination;
8.3. The results of such involuntary tests cannot be considered as ‘material evidence’ in the eyes of the law;
8.4. Conducting such tests in the absence of consent violates ‘substantive due process’ – which is an essential element required for restraining one’s personal liberty. Permitting such tests may lead to a disproportionate exercise of police powers;
8.5. The boundaries of privacy of a person are also breached when these tests are conducted without consent; and
8.6. For voluntary tests, it must be ensured that appropriate safeguards are in place. Moreover, the results of the same cannot be admitted directly as evidence. Pertinently, any fact or information that is discovered subsequent thereto, with the help of the information supplied in the result, can be admitted into evidence with the aid of Section 27 of the Indian Evidence Act 1872.
From the above exposition of law, it is clear that under no circumstances, is an involuntary or forced narco-analysis test permissible under law.
Demerits of an Involuntary or forced Narco-Analysis Test or Similar Test
- May be threat given by the investigators to conduct any of the tests could prompt a person to make incriminatory statements or to undergo some mental trauma.
- Individuals from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advice, the mere apprehension of undergoing scientific tests that supposedly reveal the truth could push them to make confessional statements.
- It is also quite conceivable 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 will also lead to an unnecessary rise in the volume of frivolous litigation before the courts.
Voluntary administration of Narco-Analysis Test or Similar Test
Any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872. The accused has a right to voluntarily undergo a narcoanalysis test at an appropriate stage of the trial. The appropriate stage for such a test to be conducted is when the accused is exercising his right to lead evidence in a trial. However, there is no indefeasible right with the accused to undergo a narco-analysis test, for upon receipt of such an application the concerned Court, must consider the totality of circumstances surrounding the matter, such as free consent, appropriate safeguards etc., authorizing a person to undergo a voluntary narco-analysis test.
Guidelines issued in Selvi and Ors. v. State of Karnataka in this regard as follows :
“265. The National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused in 2000. These Guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the “narcoanalysis technique” and the “Brain Electrical Activation Profile” test. The text of these Guidelines has been reproduced below:
(i) No lie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
(ii) If the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii)The consent should be recorded before a Judicial Magistrate.
(iv)During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
(v)At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a “confessional” statement to the Magistrate but will have the status of a statement made to the police.
(vi)The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii)The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
(viii)A full medical and factual narration of the manner of the information received must be taken on record.”