With his dying breath, Fred Ery identified Floyd “Buzz” Fay as his murderer. “Buzz did it,” he whispered to his wife. When Buzz was charged with aggravated murder, he didn’t seem particularly perturbed. “I kept thinking, they’ll find the right person, they’ll get this straightened out, they’ll let me go tomorrow,” he told the Calgary Herald, “I wasn’t even going to hire a lawyer.” The county prosecutors offered Buzz a deal: they would drop all charges if he agreed to take a polygraph – a lie detector test – to prove his innocence. He took two tests but both suggested he was lying about his innocence. This, along with circumstantial evidence, sealed his 1979 conviction and he spent two-and-a-half years in prison for a murder he didn’t commit. During his time in prison, Buzz studied the polygraph. He developed a training exercise to help people fool the lie detector and after just 15 minutes of instruction, 23 out of 27 inmates beat the polygraph. (Vaughan Bell, The truth about lie detectors, The Guardian, April 22, 2015.) This is just one of the incidents where the veracity of the Deception Detection Tests was proved, or rather unproved. The Supreme Court of India in 2010 in the case of Selvi vs. State of Karnataka (AIR 2010 SC 1974) gave its verdict on the legality of using Deception Detection Tests (DDT) like narco-analysis in the investigation process and held that administering these tests on the accused is illegal. The court, however, permitted use of such techniques in criminal cases on consent and with some safeguards.
The term Narco Analysis is derived from Greek word narkc (meaning anaesthesia 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 central nervous system of the body of the subject is depressed by the drug, which puts the subject in a hypnotic state, and it is believed that in such a trance-like situation the individual cannot speak anything but the truth. It is believed that a person under the effect of the barbiturates, specifically sodium pentothal, is in a semi-conscious state and therefore statements made by him do not have any legal validity. The disbelievers of this way of investigation contend that this goes against the will of the person and is violative of Article 20(3) which states that no person accused of an offence shall be compelled to be a witness against himself. The privilege against `self-incrimination’ is a fundamental canon of Common law criminal jurisprudence. 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.
Article 20(3) of the Constitution says that no person accused of an offence shall be compelled to be a witness against himself. Even in the case ofRojo George vs Deputy Superintendent of Police (2006 (2) KLT 197), it was presented that: “In present days the techniques used by the criminals for commission of crime are very sophisticated and modern. The conventional method of questioning may not yield any result at all. That is why the scientific tests like polygraph, brain mapping, narco analysis, etc. are now used in the investigation of a case. When such tests are conducted under strict supervision of the expert, it cannot be said that there is any violation of the fundamental rights guaranteed to a citizen of India.”
There are three words that need to be taken into consideration. They are ‘person accused’, ‘compelled’ and ‘be a witness against himself’. The above article provides protection only to persons ‘accused’ of a crime and not mere suspects. This means that the narco test can be done on the suspects and useful information can be extracted without hampering their rights. The Supreme Court in the case of Nandini Satpathy v. P.L. Dani (1978 AIR 1025) held that compelled testimony must be read as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods. People against this form of investigation contest that it is a type of psychic torture on the person undergoing the test. Psychic torture must satisfy four criteria, namely, suffering, infliction, deliberateness, lack of direct physical violence. Although there is infliction, deliberateness in some cases, no direct physical violence is involved. However, there is no suffering at all and this negates the possibility of psychic torture. In the case of Santokben Sharmanbhai Jadeja v. State of Gujarat (2008 (2) KLT 398) the Gujarat High Court held as follows: “By conducting/performing the Narco Analysis Test itself would not tantamount to compulsive testimony or testimonial compulsion and the same would not amount to violation of Art.20(3) of the Constitution of India and if the statement recorded during the course of the aforesaid test is used against the accused, enough protection exists in the Criminal Procedure Code and/or Evidence Act and recourse to which can be taken”
Moreover, merely providing information does not mean incriminating oneself. Such information obtained can be used as a basis for further investigation and might even solve the case at hand, at a rate faster than the ordinary rate. However, throughout the years, a new perception has emerged among the scholars which works against the veracity of these tests.It is contended that results of narco-analysis are not 100% accurate. Some people train their minds in such a way so as to break through the whole process, the incident mentioned in the beginning is just one example to portray the grey areas in this technique. Moreover, during the session, there is a possibility that the person might divulge information which concerns his private life and thus might end up getting his right to privacy violated. The dose of chemical which is administered in the body of the person is determined by his/her various characteristics like physique, age, sex, mental attitude, will power. So, if the dose is given in a wrong quantity, that might leave the person in coma or even cause his death. Put in simple words, if the test is done without taking consent, then that might be the violation of his fundamental and human rights. Just like anything cannot be black or white and has its own grey areas, the concept of narco- analysis also has its disadvantages. But, over the years, it has still tried to prove its worth in letting out significant information in cases like the Nithari Murder Case wherein the accused spilled out some important information about various places and people. This is just one case, there are many others too that prove that narco test does turn out to be fruitful. With evolving times, the pattern of criminal behaviour has also advanced. Use of science and technology has particularly increased. This calls for equally effective ways in nabbing the offenders. The recent trends show that narco analysis tests have proven to be an aid in the investigation process. They not only make the whole process speedier and reliable, but are also seen as an alternative for the inhuman third-degree torture that the police force sometimes resorts to. Since the Courts have allowed the usage of ‘consented’ narco tests, there should be no reason whatsoever for holding back the investigating agencies in the pursuit of getting answers from the suspects and accused by following the bare minimum level of safety procedures.
Centre for Research in Constitutional Law and Policy 