As science has outpaced the development of law or at least the 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 India. Narco-Analysis poses several questions at the intersection of law, medicine and ethics. Is the procedure for Narco-Analysis is violative of the rights against self incrimination, guaranteed under Article 20 (3) of the Constitution. It figured prominently in the news recently when it became eye of storm and sparked off the debate when media played tapes of Telgi, accused subjected to Narco-Analysis procedure.
In the case of US vs. Solomon [1] there was a detailed discussion on the topic of Narco-Analysis. In this case the expert opinion given to the court established that truth serum test is generally accepted as an investigative technique. It has been proved by scientific experimentation that if a person is administered with such drugs which may suppress his reasoning or power to think, he may be made to tell the truth. Police relies on Narco-Analysis test as a scientific device aiding the process of investigation, which is not only helpful in solving pending criminal cases but also helps in crime prevention. Narco-Analysis being a scientific approach is preferred over traditional third degree method. But on the other hand questions are raised with regard to the authenticity of evidence collected through such procedure of investigation. Its application is also questioned as it suffers from various drawbacks such as:
The person conducting the test has to be a highly qualified physician. It is very essential to administer correct measure of dose, as overdose may turn out to be fatal and may even result in death of the suspect [2] . The test can fail if the suspect is an abuser or regular user of certain kind of narcotic substances.
It need not be said that prevention of crime and punishment for the crime are the duties of the State. Fetters on these duties can be put only in extreme cases where the protection of fundamental rights weighs more than the fundamental duty cast on the State [3] . Moreover, every person is required to furnish information regarding offences. [4] As science has outpaced the development of law, there is unavoidable complexity regarding what can be admitted as evidence in the court of law. Narco-Analysis is one such scientific development that has become an increasingly common term in India.
Narco-Analysis and Legal Aspects:
In any criminal investigation, interrogation of the suspects and accused plays a vital role in extracting the truth from them [5] . From time immemorial, several methods, most of which were based on some form of torture, have been used by the investigating agencies to elicit information from the accused and the suspects. With the advancement of science and technology, sophisticated methods of lie detection have been developed which do away with the use of "third degree torture" by the police. The scientific tools of interrogation namely- the Lie Detector or the Polygraph Test, the P300 or the Brain Mapping Test, and the Narco-Analysis [6] or the Truth Serum Test are the three main tests that have recently been developed for extracting confessions. These psychoanalytical tests are also used to interpret the behaviour of the criminal (or the suspect) and corroborate the investigating officers' observations.
The method of Narco-Analysis impinges on the right to life and liberty under Article 21 and the right to not to be a witness against oneself under Article 20(3) of the Constitution. The remedy in law for being illegally detained and for the enforcement of the right to life is the writ of habeas corpus - which literally means producing the body of the person. The right to life is intrinsically connected to the inviolability of the body. Even when a doctor has to perform a procedure which involves introducing a chemical in your body as in anesthesia, or cutting open the body to perform an operation to cure, the consent of the patient is required. Thus we find that even in procedures performed for the welfare of a patient, consent of the individual is required for any invasion of the body. The introduction of sodium pentothal in the body of a person without his/ her consent for Narco-Analysis violates not just the right against self-incrimination but the right to life itself.
The administration of drugs in the body and subsequent Narco-Analysis without the consent of the individual has been upheld by in three cases by two high courts. The Madras High Court in the case of Dinesh Dalmia [7] in 2006 has held narco-analysis is not testimony by compulsion. The reasoning offered by the court is that the accused person "may be taken to the laboratory for such tests against his will, but the revelation during tests is voluntary".
The revelations during Narco-Analysis are pronounced as voluntary by the court. It seems to be very much like "a person is compelled to testify voluntarily" - a contradiction in terms. If we take this reasoning to the sphere of the use of third degree methods, it is like inflicting physical torture on a person till he/ she breaks down and then terming the revelations as "voluntary confession".
The second case is of Abdul Karim Telgi [8] where the Bombay High Court says that certain physical tests involving minimal bodily harm like Narco-Analysis and Brain Mapping do not violate the fundamental right against self-recrimination embodied in Article 20(3) of the Constitution. Courts, specially the higher judiciary, do not just decide individual cases but their judgments enunciate principles of law applicable in general. In the Telgi case, the principle being laid down appears to be that methods which inflict minimal bodily harm are permissible. Again, if we take this principle to the realm of use of third-degree methods it might assist us in looking at the implications. In constitutional and criminal jurisprudence, the use of torture has unequivocally been looked upon as illegal and violative of the fundamental right to life and the right of the accused against self-incrimination.
Narco-Analysis is Nothing but a Form of Torture
In the context of physical torture, the interpretation of 'minimal body harm' to extract information is unclear. The present categories in law are 'simple hurt' and 'grievous hurt'. Or, in terms of disability, - causing temporary or permanent disability. Applying the enunciated principle of minimal bodily harm - is it that causing simple injury or causing a temporary disability to extract information in the course of investigation would be permissible? Would depriving a person of sleep for long time periods in order to get a confession be okay in the eyes of law? Enunciation of such a principle is a hazardous departure from the present consensus with respect to the illegality of third-degree methods as a tool of investigation and collection of evidence.
The UN definition of torture [9] has four components. The first component says that torture produces physical/mental suffering and is a degrading treatment. The second one says that it is always intentionally inflicted. The third component says that it is inflicted for certain purposes such as getting information, confession, etc. And the fourth component says that it is inflicted by an official actor or an actor acting on behalf of an official. These are the four major components in the human rights, or the legal, definition of torture. When you look at Narco-Analysis, you will find that all these four components are really satisfied. It is degrading because it deliberately uses a drug that attempts to alter the state of mind of a person against his/her wishes. It produces mental suffering in an individual, more so if he or she discovers that some of his or her fantasy revealed in the procedure is used to make accusation of real crime [10] .
In the present Indian condition, it is even more so because the police or forensic laboratory have released video clips of the actual Narco-Analysis of a person to the media [11] , the same getting played out on the TV repeatedly when the same is not even admissible as evidence in the court of law. Thus, even before a court trial begins, a person is tried in the media, thus inflicting a high level of mental suffering and stigmatisation of the individual by the society. The rest of the components of the definition are easily satisfied.
Indeed, it is deliberately inflicted-so deliberately that it is systematically done in an operation theatre and not in a prison or police lock-up. It is also a method not only to extract information but also to force confessions. And it is always done by the police through its forensic laboratory and personnel employed there, along with the doctors in a hospital who are specifically appointed by the police to do the procedure.
We always thought of torture as a gory, blood-soaked and barbaric way of treating a person. So we are often misled into believing that anything, which does not look gory, spill blood or break bones, cannot be barbaric and a form of torture. Torture, in fact remains torture even if it does not spill blood, break bones and is done in sterile, air-conditioned operation theatres. What is true of the procedure for death penalty, which moved from gory and bloody firing squads and the guillotine to electric chair and sterile lethal injections, holds true for torture as well. Narco-Analysis produces torture as clearly as the lethal injection produces death.
Indian Courts on Narco-Analysis:
The Indian Courts have so far refused to admit the Narco Analysis as evidence, but Narco Analysis is being carried out by the investigators. The reason is that although confession made to the police or in the presence of police is not admissible in courts, the information is admissible by which an instrument or object used in commission of crime is discovered. This is clear from the wording of Section 27 of the Indian Evidence Act, 1872 [12] . Section 27 of the Indian Evidence Act, 1872 is founded on the principle that if the confession of the accused is supported by the discovery of a fact, the confession may be presumed to be true, and not to have been extracted. It comes into operation only: (i) if and when certain facts are deposed to as discovered in consequence of information received from an accused person in police custody; and (ii) if the information relates distinctly to the fact discovered. If the self-incriminatory information given by an accused person is without any threat that will be admissible as evidence and will not be hit by Article 20 (3).
Section 156 (1) of the Code of Criminal Procedure [13] which reads "Police officer's power to investigate cognizable cases" states that any officer in charge of a police station without the order of a Magistrate can investigate any cognizable case which a Court has power to inquire into or try under the provisions of Chapter XIII. "Investigation" as defined in Section 2 (h) of Cr.P.C includes all the proceedings under the Code of Criminal Procedure for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by a Magistrate. Thus, collection of evidence by Police Officer is permitted under law. Conducting Narco-Analysis Test on an accused is also a part in this process of collection of evidence by the investigating agency. The Karnataka High Court also made a similar observation in the case of Smt. Selvi and Ors v. State by Koramangala Police Station [14] . This provision is also constitutionally valid.
Conclusion:
The use of Narco-Analysis as an investigative tool or as evidence is violative of the right to life, liberty and the right against self-incrimination. Viewed from the point of view of criminal trials, the unreliability of the procedure and the impact of the drugs on the psyche may result in miscarriage of justice and conviction of innocent persons. The logic of 'minimal bodily harm' being permissible for extraction of information offered for upholding Narco-Analysis has grave implications as to the use of coercive third-degree methods, especially in the context of growing curbs on rights in the name of tackling terrorism. The democratic rights movement must take up a sustained campaign against the use of invasive methods like Narco-Analysis and Brain Mapping Tests.
