Constitutional Validity of Narco-analysis: Valid Defence of Public Interest or a Result-motivated Stand?

This article was written  by one of our Ghost Writers

Introduction: “Nemo Tenetur Seipsum prodere”

Narco analysis 

In the current scenario, technology has been seen outpacing the law, and some of the main tools of this technological advancement are the methods of narco-analysis, brain mapping and lie detector tests that are extensively used by police for criminal investigation. The paper examines the extent of their permissibility in the legal framework that recognizes the conflicting interests manifested in the form of individual fundamental rights versus larger public interest. The paper analyzes the progressive decision[1] by a three-judge bench that
had entirely dealt with the issue of constitutionality of the impugned investigative tests. By looking at Article 20(3)[2] of the Constitution that had been discussed upon in detailed manner, a question of right versus prestige arises, in relation to which a person is undeniably entitled to his fundamental rights, even if he is alleged for committing an offence. According to the Court, the rights guaranteed under Part III of the Constitution cannot be negotiated away on account of his criminal background, not even by a legal provision. As mentioned earlier, a detailed analysis of the constitutional validity of investigative tests that include Narco-analysis, brain mapping and lie detector tests, is tantamount to comparison of contrasting interests, i.e. speedy justice to victims and individual legal entitlements guaranteed through constitutional mandates. Forcibly administering the person these tests would attract several inherent rights that every citizen is entitled to. (Image taken from here.)

Narco-analysis through the Lens of Article 20(3): Right against Self-incrimination

The right against self-incrimination falls as a part of legal dimension[3] which outlines the right to fair trail, that is inclusive of several rights in the interest of accused such as presumption of innocence, right to be informed of charges, standard of proving guilt beyond reasonable guilt, right to counsel, etc. While deciding the case, the Court went into the rationale and the historical origins of the right against self-incrimination, thus investigating into the motivation involved or the object behind Article 20(3) of the Constitution. The Court also appreciated the protection of ‘personal liberty’ understood in the context of Article 21. It viewed the admissibility of impugned tests through the lens of ‘substantive due process’ that has been found to be essentially integrated into the Indian legal process (though not explicitly provided under any part of the Constitution, unlike US), and explored the question as to whether subjecting a person to the tests intrudes into the personal space, hence overstepping his personal liberty. The tests were disallowed as they were recognized to be contravening the right against cruel, inhuman or degrading treatment[4] that falls within the broader scope of Article 21. The Court also invoked individual right to privacy, they were of the view that compulsive administration to these tests led to forcible intrusion into one’s mental space. This contention was made on the premise that the tests often render the subject into unconsciousness. Furthermore, the accuracy of the impugned techniques was brought into question, and the Court went on to strike down their reliability. This lacking veracity was realized through empirical studies where it is usually observed that the person subjected to these tests under compulsion gave statements that were not found to be true in nature. These false statements subsequently prove to be detrimental to the investigative process, as the investigators would diverge into the wrong direction, hence causing delayed justice to the aggrieved persons and destroying the essence of expeditious justice. Another question was raised as to whether a statement made on account of apprehension to be subjected to the tests would come under the purview of Article 20(3), and hence would be not be admissible. Later in the judgment, the Court answered the question in affirmative, contending that any statement made under the threat of administering to the impugned tests would not stand valid to be used against the subject.

The Court, in the decision, discussed the scope of right against self-incrimination that falls within the wider dimension of Article 21 that is inclusive of right to fair trial and substantive due process. It stressed on the fact that these right have a ‘non-derogable’ character which implies that they cannot be overlooked even in the event of emergency.

Referring to the ‘responsibilities of citizens for cooperating with officials in any criminal investigation’[5], the tests were defended by the investigators on the rationale that the methods use are imperative for extracting information and hence preventing future activities of serious criminal nature. They justified the use of impugned tests through the notion of ‘compelling public interest’ and argued that the techniques were imperative for preventing grave criminal acts in future. The authorities in the judgment adopted another line of reasoning by arguing that the tests are alternative to and ‘softer’ than “third degree methods”. The Court rejected the argument put forth by the Respondents, contending that these provisions that demanded citizen cooperation in the investigative process cannot override the constitutional safeguards[6] given to accused as a citizen.

 An accused is entitled to right to refusal. This right, according to the Court, has a close relation to right to fair trial that finds its place within the ambit of Article 21 of the Constitution as it is seen that the statement given by the accused are likely to strengthen prosecution’s case and convict him. This contention was found to be based on the rationale that “innocent persons should not be reluctant in testifying” and that it would be disadvantageous for the accused if there are irregularities found in the statements that may indicate him to be guilty. These rights have been designed in order to mitigate the detriments faced by an accused within the custodial environment. The Court in the decision recognized two reasoning underlying the principle of right against self-incrimination, as namely:

                    I.            Loss of veracity in the statements given by the accused under compulsion or threat. These statements are seen to detrimental to the investigative process as they impede the trial by misleading the persons involved.

                   II.            Compelling a person to give statements that is likely to prove him guilty violates his dignity and bodily integrity[7]. It is important to note that the right to silence can be waived at the option of the accused, which means that any information given by the accused voluntarily [Kathi Kalu case] does not come under the protection of Article 20(3) and hence, it is admissible. The Court also held that exercising such ‘short-cut’ methods would dismantle the motivation of the investigators or police officials to conduct diligent investigation.

Deciding on the extent of safeguard provided under Article 20(3) of the Constitution, the Court opined that besides trial it also extends to investigation stage, which implies that statements given by the accused outside the court room are also protected by the provision[8] but it applies to every stage where information is furnished by a person who is at that time in the position of an accused[9], as per Section 161(2) of the Code. This statement must stem from custodial interrogation. However, it is pertinent to note that the Court recognized protection contemplated under Section 161(2) to cover any person who is well-acquainted with the facts and circumstances of the case. This construction of the provision expands its scope to cover those who are examined as suspects as well as witnesses who may be exposed of charges in the present case or for any other offence in another case. However, the safeguard under Article 20(3) cannot be extended to proceedings other than those of criminal nature. The nature of the statement covered was also examined and it was decided that any statement, whether inculpatory or exculpatory given while in custody, that has a ‘reasonable tendency’ to expose the guilt of the accused [Nandini Satpathy case] or creates risk of exposing him to any criminal charge, would come under scope of Article 20(3).

Brain mapping for interrogation

In the same context, the Court recognized a loophole within the protection conferred on accused persons wherein if he refuses to undergo the tests he might face non-penal consequences by the authorities such as custodial violence. The Court maintained that nowhere in the legal framework is the accused protected from any such conduct. In the decision, it was also clarified that the statements though cannot be admitted as evidence; however it may be used for the purpose of identification or corroboration with the facts. While deciding on the nature of the testimony that is prohibited by under Article 20(3), the Court contended that even though there were no verbal but physiological responses involved while using tests like brain mapping and lie detector, these methods are used to convey ‘personal knowledge’ [M.P. Sharma case]. The Court further held that since these responses are measured by the investigators to deduce the information, the tests fall under the scope of constitutional safeguard, since they are a “means for imparting personal knowledge about relevant facts”. It was also observed that initial consent is not sufficient to allow the brain mapping and lie detector tests to be administered on the subject, since he is not rendered aware of the responses that he gives and after giving the prior consent, he has no conscious control over his answers. The Court contended that subject’s voluntariness cannot be presumed from his prior consent. (Image taken from here.)

Conclusion

The Supreme Court arrived at a sound conclusion that the impugned tests were constitutionally invalid; this profound sense of discontentment was also shared by the English Courts. This judgment declared the methods, if administered against the wish of the subject, to be a blatant violation of several inherent rights enshrined in Part III of the Constitution, on the premise that a person is entitled to his rights to limited extent even when circumstances render him into an accused. The judgment is a landmark decision, and was widely applauded all over. However, it was criticized, though minimally, on the ground that the Court gave the decision on the premise that upheld the notion of individual rights against broader framework of public interests.

In the judgment, it was clearly maintained by the Court that individual freedom cannot be suspended by law, even on the basis that the person in question is an accused. On this basis, the Court negated the contention of the defence that the investigative tests were crucial for investigation of offences that are grave nature and that these methods facilitate speedy justice to the victims. The Court was of the opinion that validity of the tests cannot stand against individual freedom and that this justification is not sufficient to allow forcible intrusion into the private space that every citizen enjoys.

Later in the judgment, the court contemplated a situation where the person interrogated might give statements against himself, if he has the apprehension that the test(s) would expose him to be guilty of an offence. In this context, the Court expanded the scope of compulsive testimony to include any threat on part of the investigators to administer any of the investigative tests on the subject. In the decision, the Court makes the between those who face pain and suffering in the form of punishment and the others who are inflicted to pain, whether mental or physical, during the course of investigation. The approach of the Court to prohibit suffering in the latter case can be well-appreciated; as otherwise by not doing so, it would have passed unrestricted discretion in the hands of investigators hence being detrimental to the interests of the accused who may be innocent. Court’s contention was based on principles underlying fair justice. Further, it also raised issues in relation to the credibility of the investigators who might give unduly favorable responses for promoting their invention. By allowing the tests, as per the Court, the convicts might also want to re-open their case to check the reliability of the statements given against them by the witnesses. The Court also rejected the Respondents’ argument that these tests must be permissible for most heinous crimes; it defended its position by contending that the admissibility would not recognize any restriction, and hence it would again pass unlimited discretion to the authorities.

In my view, the opinion of the Court while taking into account the protective scope of Article 20(3), that administering the accused to involuntary investigative tests that could expose him to criminal charges amounts to incrimination stands valid, also on the basis that these tests have been proved of having adverse effects on subject’s health. Therefore, the Court stood correct for not allowing the blanket justification of public interest and not arming the authorities with unregulated discretion and power to bring the culprit to the court of justice at the cost of his fundamental rights that are undeniable!

This article was written  by one of our Ghost Writers

(Yes! there are still those who do not write for publicity!)

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[1] Smt. Selvi & Ors. v. State of Karnataka; (2010) 7 SCC 263.

[2] In Article 20(3), is enshrined the privilege against self-discrimination. A corresponding provision finds its place in Code of Criminal procedure, in the form of Section 161(2). There are other provisions of similar nature enshrined in the Code, such as Section 315 and 313(3). Also is Section 27 of the Indian Evidence Act. 

[3] This framework comprises of tools that check for custodial abuses, and safeguards against them.

[4] Compulsive administration of the accused to the tests is likely to inflict ‘mental pain or suffering’ as per the Court, and the results of the tests may expose him to physical abuse, by confirming his involvement in the criminal offence.

[5] Provisions in the Code like Section 39, 156(1) & 161(1) furnish for wider powers with the police and provide for responsibilities on part of the citizens to facilitate cooperation with the police officials, in the name of expedient investigation and conviction of the ‘culprit’.

[6] Besides constitutional protection, the Code of Criminal Procedure provides for rights of the accused, particularly in form of Section 161(2) that prohibits admissibility of any statement given by the accused that is likely to ‘incriminate’ him. This Section along with other (Section 313(3), 315(1)) gives the accused the ‘right to silence’ whereby he may choose to answer the question, or remain silent. As per Section 315(1), the accused‘s silence cannot be subjected to comment by any of the parties, and it cannot be presumed against himself. However, this right has been condemned by the investigators on the ground that it makes their task unduly difficult and that it protects the criminal at the cost of ‘utilitarian interests’. Though, it has been observed in scholarly works that the investigators, out of pressure to bring out results, have a tendency to administer the subjects to the tests without their consent, by way of threat, coercion, inducement or deception. The right has also been questioned on the premise that there is no scope of privilege against compelled testimony in civil cases.

[7] In Nandini Satpathy’s case, the Court was of the opinion that this spirit of Article 21 is a result of shift from inquisitorial to adversarial system that is an imperative virtue of common law system.

[8] Even in State of Bombay v. Kathi Kathu, the Court appreciated the broader scope of Article 20(3) in terms of its applicability.

[9] Nandini Satpathy v. P.L. Dani


Tags: Legality of Narcotics 



Keywords: brain mapping legal, compulsive testimony, constitutional validity legality of narco analysis india narcotics, interrogation witnesses, narcotic analysis illegal, Nemo Tenetur Seipsum prodere,