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COMPARATIVE PUBLIC LAW

PROJECT WORK

NARCO ANALYSIS TEST IN ITS LEGAL ACCEPTANCE

(The project is submitted for the partial fulfilment of Comparative public law Course)

(Summer Semester: July 2014 - November 2014)

Submitted By:KRITIKA GUPTA (Banking and Finance)ANURAG SHARMA(CYBER LAW & SECURITY)LL.M.(Ist Semester)National Law UniversityJodhpur

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CONTENTS I. Cover PageII. List of contents

III. List of abbreviationsIV. Table of casesV. Referred list of conventions and statutes

VI. Abstract

Chapter 1: Introduction1.1 Objectives

1.2 Hypothesis

1.3 Methodology

Chapter 2: Present Indian Scenario

2.1 Introduction

2.2 What is narco

2.3 Stages of Narco Analysis Test

2.4 Historical evolution

2.5 Present situation in India

2.6 Narco Analysis and procedure followed during its conduct

2.7 Distinction between Narco Analysis Test and Other Methods

2.8 Conclusion

Chapter 3: Legal Framework In India

3.1 Introduction

3.2 Constitutional Law

3.3 Criminal Laws

(a) Code of Criminal Procedure

(b) Indian Evidence Act

3.4 NHRC Guidelines

3.5 Conclusion

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Chapter 4: International Perspective and comparative analysis

4.1 Introduction

4.2 European Convention for Protection of Human Rights and Fundamental Freedoms,1950

4.3 International Convention of Civil and Political Rights

4.4 Universal Declaration Of Human Rights

4.5 Role of Us judiciary.

4.6 Daubert Standard

4.8 Conclusion

Chapter 5: Conclusion

5.1 Introduction

5.2 Criticism

5.3 Suggestions

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TABLE OF CASES Ananth Kumar Naik V. State of Andhra Pradesh (1977 Cri L J 1797 A.P). Anil Anantrao Lokhande V. State of Maharashtra (1981 Cri L J 125) Balkishan A. Devidayal V. State of Maharashtra ((1980) 4 SCC 600) Bhondar V. Emperor (AIR 1931 Cal 601) Daubert V. Merrle Dow Pharmaceuticals (509 U.S. 579 (1993)) DS Patel V. State of Maharashtra (AIR 1959 Bom 284.) Ernesto Miranda v. Arizona (384 U.S 436 (1966)) Jamshed V. State of Uttar Pradesh (1976 Cri L J 1680 (All)) Mahipal Mahendra V. State of Maharashtra (1971 Cri L J 1405 (Bom).) Maneka Gandhi V. Union of India ((1967) 3 SCR 114) M.C Sekharan V. State of Kerala (1980 Cri LJ 31) M.P Sharma v. Satish Chandra ([1954] SCR 1077) Murphy v. Waterfront Commission (378 U.S. 52 (1964)) Nandini Satpathy V. D.L Dani (AIR 1978 SC 1025) R. V. Leatham ((1861) 8 cox cc 498) Raja Narayan Bansilal V. Maneek Phiroz Mistry ([1961] 1 SCR 417). Romesh Chandra Mehta V. State of West Bengal ([1969] 2 SCR 461) Royal College of Nursing v. Department of Health and Social Security ([1981] AC 800) Selvi v. State of Karnataka (AIR 2010 SC 1974) Sharda V. Dharampal (AIR 2003 SC 3450, 2003 (3) ALT 41 SC) State of Bombay V. Kathi Kalu Oghad ([1962]3SCR10) State (NCT of Delhi) v. Navjot Sandhu (AIR 2005 SC 3820) Wong Kam-Ming V. R ([1980] AC 247)

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CHAPTER 1 INTRODUCTION

In any criminal investigation, interrogation of the suspects and accused plays a vital role in extracting the truth from them. The agencies investigating the accused are of the view that every crime takes place in a person’s mind before they are carried out, so by investigating or studying the mind of an accused with or without consent, would render a great help in the investigation process. 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 methods of interrogation namely- The Polygraph test, The Brain Mapping test and The Narco Analysis or the Truth Serum test are the main three 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 officer’s observations. Now we are at the peak of seeing Narco Analysis as an investigating tool, where there is a question that its results will be made admissible as evidence or not as Narco Analysis raise a host of ethical, legal, and medical issues.

Narco Analysis was introduced in 1936 for the use of narcotics to induce a trance like state wherein the person is subjected to various queries1. The Narco Analysis test is based on the principle that a person is able to lie using his imagination and, under the influence of certain barbiturates, this capacity for imagination is blocked or neutralized by leading the person into a semiconscious state. It becomes difficult for the person to lie and his answers would be restricted to facts he is aware of. The statements made by the accused are recorded on audio and video cassettes, and the report of the expert is helpful in collecting evidence. The use of such drug in police work or interrogation is similar to the accepted psychiatric practice of Narco Analysis and the only difference in the two procedures is the difference in the objectives

1.1 Objectives

To know the constitutionality of Narco Analysis Test To know the evidentiary value of Narco Analysis Test To know the applicability of Narco Analysis Test in India To study the need of Narco Analysis test in present scenario To study the comparative analysis of narco analysis test India from USA.

1.2 Hypothesis

Narco Analysis Test is the infringement of fundamental right of Self incrimination as mentioned in the Article 20(3) of Indian Constitution.

Narco Analysis Test is the violation of dignified life. In the era of technology Narco Analysis Test is fruitful in detecting the truth.

1.3 Methodology

1 Critical study on validity of Narco Analysis with reference to art. 20(3) of the Indian constitution- article by Madhur Gupta

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Project work is primarily based on doctrinal and analytical research. Keeping this in view the researcher utilized the resources like print and electronic media, articles and reports of various authorities, books in the library, internet, websites, search engines, like Google. Efforts have also been made to discuss and take note of the inputs of faculties, classmates and friends, along with the guidance of the supervisor. As the study is legal in nature, historical and doctrinal methods are adopted because it is not possible to study purely by experimental method. From the collected material and information, researcher proposes to critically analyze and comparative analysis of the topic of the study and try to reach the core aspect of study.

CHAPTER 2 PRESENT INDIAN SCENARIO

2.1 Introduction

A few democratic countries, India most notably with developed county like United States of America, still continue to use Narco Analysis. Narco Analysis is not openly permitted for investigative purposes in most developed and democratic countries. My interest in Narco Analysis test was revived when it caught the attention of media and critics thereby raising several issues regarding its validity as a scientific tool of investigation and its admissibility in court of law infringement of individual fundamental rights and questions its value as evidence. In India, the Narco Analysis test is done by a team comprising of an anesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer, and supporting nursing staff. In the U.S.A, the widely acceptance of polygraph test for chrcking the antecedent and monitoring the conduct of the forensic psychologist will prepare the report about the revelations, which will be accompanied by a compact disc of audio-video recordings. The strength of the revelations, if necessary, is further verified by subjecting the person to polygraph and brain mapping tests. Narco Analysis is steadily being mainstreamed into investigations, court hearings, and laboratories in India.

2.2 What is Narco?

Narco is a prescription pain reliever. This pain reliever contains Hydrocodone and Acetaminophen. This medication can be habit forming. One should use caution when first taking this until they see how it impacts them. Narco means deadness or numbness. In the Narco Analysis Test, the subject's imagination is neutralized by making him semi-conscious. In this state, it becomes difficult for him to lie and his answers would be restricted to facts he is already aware of.

2.3 Stages of narco analysisi test

It includes following four stages:

a. Pre test interviewb. Pre narcotic statec. Semi Narcotic stated. Post test interview

Let us discuss now these stages in brief one by one.

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(a)Pre test interview At this individual is explained regarding the whole procedure and informed about the

consequences of the Narco test . It is this stage where the consent of the person is taken who has to undergo the said test.

(b)Pre Narcotic state Here the anaesthetist induces Narco and maintains the pre Narcotic state throughout the

interview. Drug is injected till the person appears relaxed and in a state of good contact. Drug i.e. sod.pentathal is given intraventously to induce hypnosis. A 5% or 10% solution of drug injected slowly in antecubital vein NMT 1gram per grain

per minute. As individual’s speech starts slurring interview begins.

(c) Semi Narcotic state

After establishing the semi Narcotic state and the individual’s appears to be(i) Flushed(ii) Slowing and slurred speech(iii) Nystagmus observing by testing examinee’s eye muscle with finger

Forensic psychologist or psychiatrist facilitate the interview. Individual is allowed to sleep off and allowed to wake up on his/her own. Once he/she wake up, anaesthetist checks him/her and allows to drink coffee or

tea Complete Narco interview is audio vedio recorded and also written.

(d) Post test interview Memory is checked Individual is allowed to know what he/she has spoken during interview Individual experience more relax and anxiety free state.

2.4 Historical Evolution

The term Narco Analysis is derived from the Greek word “nark” (meaning numbness or "anesthesia" 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 term Narco Analysis was coined by Horseley. Narco Analysis first reached the mainstream in 1922, when Robert House, a Dallas, a Texas obstetrician used the drug scopolamine on two prisoners. In the first test conducted on two prisoners in the Dallas country jail, both men denied the charges on which they were held, and both, upon trail were found not guilty2.

2.5 Present Situation in India

2 Geo Francis E “Efficacy and Ethics of Narco Analysis” volume no.25 Asvattha , An International Journal of Culture, Philosophy and theology 15 march 2012

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Narco Analysis in India has witnessed a mixed response from the judiciary, ranging from outright disapproval to reluctant and latent encouragement. For instance, during 2004-2011, various High Courts have been lackadaisical in commenting on the civil liberties' aspects of Narco Analysis while some have decreed it a permissible practice, in conformity with Part III of the Constitution. However, in M.C. Sekharan v. State of Kerala, 1980 the Kerala High Court3

took a sharp approach towards the process, declaring unambiguously that it is against the fundamental human rights of an accused. Thus, the judicial tryst with Narco Analysis in the previous decade had been one of ambivalence or approval. The judiciary possibly viewed this practice to be a solution to match the threat to internal security faced by India during the aforementioned period.

The Indian Courts have so far refused to admit the Narco Analysis as evidence, but Narco Analysis is being carried out by the investigators. There are a several issues raised by media and critics regarding the validity of Narco Analysis as a scientific tool of investigation and its admissibility in court of law. Narco Analysis is steadily being mainstreamed into investigations, court hearings, and laboratories in India.

In the recent judgment in the case of Smt. Selvi & Ors. V. State of Karnataka4 it was observed that the right against self incrimination is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives firstly, that of ensuring the reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. The law confers on ―any person, who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will be inculpatory or exculpatory. Narco Analysis test has played a very important and useful role in handling criminal cases in India. For example in the sensational cases of Mumbai serial train blasts, blasts in Delhi, Malegoan and Hyderabad and in various sensational cases of National and International ramifications. In most of the above mentioned cases, the revelations made by using the Narco Analysis test have led to the discovery of incriminating informations‘s favouring probative truth and consequently recoveries have been made in large number of cases under section 27 of Indian Evidence Act.

The judgment of an eleven-judge bench in the case of State of Bombay v Kathi Kalu Oghad5

where it was observed that ―It is well established that clause (3) of Article 20 is directed against self-incrimination by the accused person. Self-incrimination must mean conveying information based upon personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in the controversy, but which do not contain any statement of the accused based on his personal knowledge. There is no compulsion when a police officer, in investigating a crime against, a certain individual, asks him to do a certain thing. The fact that a person was in police custody when he made the statement is not a foundation for an inference that he was compelled to make the statement.

3 1980 Cri LJ 314 AIR 2010 SC 19745 [1962] 3 SCR 10,at pp. 43-44

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On January 24th, 2008, a bench of Chief Justice K.G. Balakrishnan reserved its ruling after hearing arguments for three days from various parties, including Solicitor General Goolam E. Vahanvati and senior advocate Dushyant Dave, appointed by the bench as amicus curiae to assist the court in the case. Telgi and his accomplices are facing probe by various states' police and other investigative agencies for their alleged criminal acts. These accused people have challenged the legality of the use polygraph, brain mapping and Narco Analysis by the investigative agencies to probe the crime.

In Jiah Khan suicide case6 "The Supreme Court has clearly stated that such tests have to be voluntary in nature. If he (Suraj) decides against giving his consent, it cannot have any bearing on the trial process or prejudice police investigations. He might have his personal reasons not to go ahead with the tests," he said and added, "Such test should be used only to recover hidden incriminating material and cannot be used to seek a statement of confession from the accused during investigations."

2.7 Difference Between Narco Analysis and Other Methods

The deception detection tests (DDT) such as polygraph, narco-analysis and brain-mapping have important clinical, scientific, ethical and legal implications. The DDTs are useful to know the concealed information related to crime. This information, which is known only to self, is sometimes crucial for criminal investigation. The DDTs have been used widely by the investigating agencies. However, investigating agencies know that the extracted information cannot be used as evidence during the trial stage. They have contested that it is safer than ‘third degree methods’ used by some investigators. Here, the claim is that, by using these so called, “scientific procedures” in fact-finding, it will directly help the investigating agencies to gather evidences, and thereby increase the rate of prosecution of the guilty and the rate of acquittal of the innocent. Recently, these methods are being promoted as more accurate and best to none, without convincing evidence. In a landmark judgment, the apex court of India has clearly stated that DDTs cannot be administered without consent.

Polygraph Test: Some other form of method which is used is Polygraph test which was among the first scientific tests used for interrogation. The process is divided into three parts-

a pretest interview, chart recording and diagnosis.

A set of questions are designed in such a way as to extract relevant information. Any derivation from the baseline is taken as a sign of lie, but this method according to the reports NRC, clearly stated that this technique is not scientific and is based on dubious science.

The theory behind polygraph tests is that a guilty subject is more likely to be concerned with lying about the relevant facts about the crime, which in turn produces a hyper-arousal state which is picked up by a person trained in reading polygraph results. Measurement of hyper-arousal state is based on a number of parameters such as heart rate, blood pressure, respiratory rate, skin conductance and electromyography. The principle behind these tests is questionable because the 6 (TNN june 28, 2013,04.10 pm IST) http://articles.timesofindia.indiatimes.com/2013-06-28/news-interviews/4025429_1_ Narco A nalysis-test-narco-test-jiah-khan

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measured changes in arousal state are not necessarily triggered by lying or deception. Instead, these could be triggered by nervousness, anxiety, fear, confusion, hypoglycaemia, psychosis, depression, substance induced (nicotine, stimulants), substance withdrawal state (alcohol withdrawal) or other emotions. At the same time, it is not difficult to beat polygraph tests by a trained person, who is able to control or suppress his/her arousal symptoms through relaxation exercises, Yoga, meditation, etc. Hence, the reliability of the polygraph test has been repeatedly questioned in empirical studies.

Brain Electrical Activation Profile test

The 'Brain Electrical Activation Profile test', also known as the 'P300 Waves test'. It is a process of detecting whether an individual is familiar with certain information by way of measuring activity in the brain that is triggered by exposure to selected stimuli. This test consists of examining and measuring 'event-related potentials' (ERP) i.e. electrical wave forms emitted by the brain after it has absorbed an external event. An ERP measurement is the recognition of specific patterns of electrical brain activity in a subject that are indicative of certain cognitive mental activities that occur when a person is exposed to a stimulus in the form of an image or a concept expressed in words. The measurement of the cognitive brain activity allows the examiner to ascertain whether the subject recognised stimuli to which he/she was exposed.

CHAPTER 3 LEGAL FRAMEWORK: IN INDIA

3.1 Introduction

Narco Analysis is one such scientific development that has become an increasingly common term in India. Recent times have witnessed a spate in the use of modern scientific techniques such as the lie detector, brain mapping and Narco Analysis, for use in criminal investigation. Narco Analysis Tests usually do not have any legal soundness as the confession made by a semi-conscious person is not admissible in court of law. The court may, conversely, grant limited admissibility after taking into consideration the circumstances under which the test was carried out. Various fundamental questions pertaining to judicial matters and also human rights have been raised on the application of Narco Analysis Test.

3.2 Constitutional Law

By the administration of the Nar0co Analysis test, forcibly intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the “right to silence” which is impliedly enshrined under art.19 of Indian Constitution. The procedure for Narco Analysis is violative of the rights against self incrimination, guaranteed under Art. 20(3). Further by subjecting a suspect to Narco Analysis against his will amount to denial of fair procedure of reasonable and just in the context of Art. 21 of the constitution of India. It is established after

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Maneka Gandhi case7 that ‘due procedure’ for purpose of art.21 have to be reasonable, fair and just. The procedure contemplated by art. 21 must answer the test of reasonableness in order to conform with art.14.

(a)Right to Life and Personal Liberty

Right to life as given under Article 21 has been construed broadly by the courts as an important right. It thus include not on physical existence but include right to life with dignity. The essence of Article 21 lies in guarantying person liberty to every citizen of India. "Personal liberty" includes all the freedoms which are not included in Article 19 (that is, the six freedoms). It means liberty of  an individual, freedom from unwarranted arrest nor other physical coercion in any manner that does not fall under the ambit of legal justification.The right to life and personal liberty in itself include the right to privacy. The right of privacy is a broad concept, used in diverse contexts to refer to a variety of claims or entitlements. One of the more significant branches of the right of privacy concerns the right of an individual to make personal decisions about his or her life free from government control; that is, the right of individual autonomy. The right of individual autonomy or privacy potentially may encompass matters such as the right to marry, the right to have a family, the right of reproductive freedom, the right of bodily integrity, the right to ingest substances, the right to refuse medical treatment, the right to physician-assisted suicide, the right to cohabitation, and the right of intimate association. The right of privacy is based on the principle that “a person belongs to himself and not others nor to society as a whole.” It embodies a sense of “personhood” “autonomy of self” that should remain free from intrusion or coercion by society or the government. It comprehends that there are certain personal decisions concerning one’s life that an individual should be able to make for oneself free from interference by the state.Black’s Law Dictionary refers to privacy as “the right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned”. Article 21 not only includes privacy but has been judicially expanded to include a ‘right against cruel, inhuman or degrading treatment’. The word “degrading treatment” means “cause to break down or deteriorate chemically.”  Moreover Convention against Torture and other cruel, Inhuman or degrading Treatments or punishment, has specifically laid the meaning of torture in Article 1, which includes both physical and mental pains. India being a part of this convention  and it is a duty of state under Article 37 to take measure to enforce this convention under Article 51(c). Though in Narco Analysis, life threatening danger is not caused but there is biological degradation, due to the chemical Substance of Sodium. Moreover it is well known fact that it is very difficult to ascertain the amount of the chemical substance, as it may differ with age, sex and location. If excess amount is given then it will be quite harmful for the person going through Narco Analysis.

(b)Right to remain silent

The right to remain silent is not directly guaranteed by the Constitution of India, it is indirectly provided to the Indian citizens by virtue of a combined reading of art.19(1)(a) and art.19(2).

7 (1967) 3 SCR 114

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Article 19(1)(a) secures to every citizen the freedom of speech and expression. The freedom of speech and expression means the right to express one’s conviction and opinions freely by word of mouth, writing, printing, pictures or any other mode. Freedom of speech is the bulwark of a democratic government and it attaches great importance to this freedom, because without the freedom of speech appeal to reason, which is the basis of democracy, cannot be made. Freedoms of speech opens up channels of free discussions of issues and play a crucial role in public opinion on social, political and economic matters. The emerging judicial view is that the freedom of speech can be exercised by a person subject to keeping the level of noise pollution within bearable limits. Although noise pollution has not been mentioned in Article 19(2) as a ground for which reasonable restrictions can be imposed on the freedom of speech, the courts have implied this limitation from Article 19 (1)(a) itself. The courts have argued that freedom of speech includes the freedom to remain silent. The courts raised the question: can a person exercise his right, so as to interfere with the freedom of others? The courts have answered this question as follows: when a person enjoys his rights under Article 19(1)(a), he must do so causing very minimum inconvenience to others. A person cannot claim his freedom of speech so as to interfere with the human rights and Fundamental Rights of others8. Thus, by virtue of reasonable restriction as imposed by art. 19(2) upon a person’s right to speech under art. 19(1)(a), every person has a right to remain silent and not to answer those questions which goes on to prove his accusation forcibly. If a person is forced to answer such questions then it is a violation of his fundamental right. But this does not mean that a person can never make a statement which goes on to prove his accusation. He can make such statements voluntarily with his free consent.

Right against self-incrimination Art. 20(3)

It is known that now ‘the right against self-incrimination' is viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives - firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage. When a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the `rule against involuntary confessions' is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts.

In this sense, `the right against self-incrimination' is a vital safeguard against torture and other `third-degree methods' that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important, otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such `short-cuts' will compromise the diligence required for conducting meaningful investigations. During the trial stage, the onus is on the

8 New Road Brothers v. Commissioner of Police, Ernakulam, AIR 1999 Ker 262

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prosecution to prove the charges levelled against the defendant and the `right against self- incrimination' is a vital protection to ensure that the prosecution discharges the said onus. These concerns have been recognized in Indian as well as foreign judicial precedents. For instance, Das Gupta, J. had observed in State of Bombay v. Kathi Kalu Oghad9 that subjecting the accused to the harmful tests such as Narco Analysis can be more harmful to the detection of crime or conviction of the real culprit, and more likely to hamper the disclosure of truth than to allow investigators or prosecutors to slide down the easy path of producing by compulsion, evidence, whether oral or documentary, from an accused person. “It has been felt that the existence of such an easy way would tend to dissuade persons in charge of investigation or prosecution from conducting diligent search for reliable independent evidence and from sifting of available materials with the care necessary for ascertainment of truth.” If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation and prolonged examination of other men, materials and documents? It is a serious danger that some accused persons, may be induced to furnish evidence against themselves which is totally against the constitution. The Constitution makers were clearly well aware of these serious dangers and it was to avoid them that Article 20(3) was put in the Constitution.V.R. Krishna Iyer, J. echoed similar concerns in Nandini Satpathy V. P.L. Dani10, Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic ante-chamber of a police station. And in the long run, that investigation is best which uses stratagems least, that policeman deserves respect who gives his fists rest and his wits restlessness. The police are part of us and must rise in people's esteem through firm and friendly, not foul and sneaky strategy. "The Supreme Court11 held as unconstitutional the forcible use of Narco Analysis, polygraph and brain electrical activation profile or brain-mapping tests, so that cops who were increasingly using the procedures as investigation tools even when the findings could not be used as evidence can be minimised. The SC said they cannot be used even on those accused of serial killings and bomb blasts as they are violative of the fundamental right of a citizen not to incriminate himself and his right to privacy under Articles 20(3) and 21 of the Constitution.

Art.20(3) and Code of Civil Procedure

In recent years, the judicial power to order a medical examination, in a different context, has been discussed by this Court in Sharda v. Dharampal12. In that case, the contention related to the validity of a civil court's direction for conducting a medical examination to ascertain the mental state of a party in a divorce proceeding. Needless to say, the mental state of a party was a relevant issue before the trial court, since insanity is a statutory ground for obtaining divorce under the Hindu Marriage Act, 1955. S.B. Sinha, J. held that Article 20(3) was anyway not applicable in a civil proceeding and that the civil court could direct the medical examination in

9 [1962]3SCR10,at pp. 43-4410 AIR 1978 SC 102511 Dhananjay Mahapatra, TNN May 6, 2010, 12.35am IST available at: http://articles.timesofindia.indiatimes.com/2010-05-06/india/28298738_1_narco-analysis-sc-ruling-move-court, last viewed on 23.04.2014.12 AIR 2003 SC 3450, 2003 (3) ALT 41 SC

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exercise of its inherent powers under Section 151 of the Code of Civil Procedure, since there was no ordinary statutory basis for the same. It was observed it is the primary duty of a court is to see that truth is arrived at. A party to a civil litigation, it is axiomatic, is not entitled to constitutional protections under Article 20 of the Constitution of India. Thus, the civil court although may not have any specific provisions in the Code of Civil Procedure and the Evidence Act, has an inherent power in terms of Section 151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit.Discretionary power under Section 151 of the Code of Civil Procedure, it is trite, can be exercised also on an application filed by the party. In certain cases medical examination by the experts in the field may not only be found to be leading to the truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms. Having regard to development in medicinal technology, it is possible to find out that what was presumed to be a mental disorder of a spouse is not really so. In matrimonial disputes, the court also has a conciliatory role to play - even for the said purpose it may require expert advice.

Applicability of Article 20(3) at the stage of investigation

The question of whether Article 20(3) should be narrowly construed as a trial right or a broad protection that extends to the stage of investigation has been conclusively answered by our Courts. In M.P. Sharma v. Satish Chandra13, it was held by Jagannadhadas, J. : the guarantee in Article 20(3) is against `testimonial compulsion'. It is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. Indeed, every positive volitional act which furnished evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is `to be a witness' and not to `appear as a witness': It follows that the protection afforded to an accused in so far as it is related to the phrase `to be a witness' is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been leveled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case.These observations were cited with approval by B.P. Sinha, C.J. in State of Bombay v. Kathi Kalu Oghad and Others14. In the minority opinion, Das Gupta, J. affirmed the same position: If the protection was intended to be confined to being a witness in Court then really it would have been an idle protection. It would be completely defeated by compelling a person to give all the evidence outside court and then, having what he was so compelled to do proved in court through other witnesses. An interpretation which so completely defeats the constitutional guarantee cannot be correct. The contention that the protection afforded by Article 20(3) is limited to the stage of trial must therefore be rejected. The broader view of Article 20(3) was consolidated in Nandini Satpathy v. P.L. Dani15, the Court stated that any giving of evidence, any furnishing of information, if likely to have an

13 [1954] SCR 107714 Supra note 615 Supra note 11

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incriminating impact, answers the description of being a witness against oneself. Not being limited to the forensic stage by express words in Article 20(3), we have to construe the expression to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Article 20(3).This is precisely what Section 161(2)16 means. That sub-section relates to oral examination by police officers and grants immunity at that stage. While the code may be changed, the Constitution is more enduring. Therefore, we have to base our conclusion not merely upon Section 161(2) but on the more fundamental protection, although equal in ambit, contained in Article 20(3).If the police can interrogate to the point of self- accusation, the subsequent exclusion of that evidence at the trial hardly helps because the harm has already been done. The police will prove through other evidence what they have procured through forced confession. So it is that the foresight of the framers has pre-empted self- incrimination at the incipient stages by not expressly restricting it to the trial stage in court. True, compelled testimony previously obtained is excluded. But the preventive blow falls also on pre-court testimonial compulsion. The condition, as the decisions now go, is that the person compelled must be an accused. Both precedent procurement and subsequent exhibition of self-incriminating testimony are obviated by intelligent constitutional anticipation.

Reference to US Law on Self-Incrimination

In upholding this broad view of Article 20(3), V.R. Krishna Iyer, J. relied heavily on the decision of the US Supreme Court in Ernesto Miranda v. Arizona17. The majority opinion (by Earl Warren, C.J.) laid down that custodial statements could not be used as evidence unless the police officers had administered warnings about the accused's right to remain silent. The decision also recognised the right to consult a lawyer prior to and during the course of custodial interrogations. The practice promoted by this case is that it is only after a person has `knowingly and intelligently' waived of these rights after receiving a warning that the statements made thereafter can be admitted as evidence. The safeguards were prescribed in the following manner, "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. ... As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the

16 Such person shall be bound to answer truly all questions relating to such case 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.17 384 U.S 436 (1966)

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individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.""In these cases, we might not find the defendant's statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect the precious Fifth Amendment right is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. ... It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carried its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. The current practice of incommunicado interrogation is at odds with one of our Nation's most cherished principles - that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice."The opinion also explained the significance of having a counsel present during a custodial interrogation. It was noted that the circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more `will benefit only the recidivist and the professional.' Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.The majority decision in Miranda was not a sudden development in U.S. constitutional law. The scope of the privilege against self-incrimination had been progressively expanded in several prior decisions. The notable feature was the recognition of the interrelationship between the Fifth Amendment and the Fourteenth Amendment's guarantee that the government must observe the `due process of law' as well as the Fourth Amendment's protection against `unreasonable search and seizure'. While it is not necessary for us to survey these decisions, it will suffice to say that after Miranda, administering a warning about a person's right to silence during custodial interrogations as well as obtaining a voluntary waiver of the prescribed rights has become a ubiquitous feature in the U.S. criminal justice system. In the absence of such a warning and voluntary waiver, there is a presumption of compulsion with regard to the custodial statements, thereby rendering them inadmissible as evidence. The position in India is different since there is no automatic presumption of compulsion in respect of custodial statements.

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The rationale behind the Fifth Amendment in the U.S. Constitution was eloquently explained by Goldberg. J. in Murphy v. Waterfront Commission18. The said rational is that it reflects many of our fundamental values and most noble aspirations our unwillingness to subject those suspected of crime to the cruel trilemma of self- accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state- individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contests with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distrust of self- deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent.A similar view was articulated by Lord Hailsham of St. Marylebone in Wong Kam-ming v. R19 which can be summarized in following words: any civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary.

3.3 Criminal Laws

(a)Code of Criminal Procedure

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 Art. 20(3) of Constitution. It also goes against the maxim Nemo Tenetur se Ipsum Accusare that is, ‘No man, not even the accused himself can be compelled to answer any question, which may tend to prove him guilty of a crime, he has been accused of’. If the confession from the accused is derived from any physical or moral compulsion (be it under a hypnotic state of mind) it should stand to be rejected by the court.The right against forced self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal Procedure (Cr.P.C) and the Indian Constitution. In the Cr.P.C, the legislature has guarded a citizen’s right against self incrimination, S.161 (2) of the Code of Criminal Procedure states that every person “is bound to answer truthfully all questions, put to him by a police officer, other than questions the answers to which, would have a tendency to expose that person to a criminal charge, penalty or forfeiture”. It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy v. P.L.Dani20, no one can forcibly extract statements from the accused, who

18 378 U.S. 52 (1964)19[1980] AC 24720 Supra note 11

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has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence. The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3); the privilege against self incrimination available to a person accused of an offence. It has its equivalents in the Magna Carta, the Talmud, and the law of almost every civilized country. The characteristic feature of this principle is that the accused is presumed to be innocent, it is for the prosecution to establish his guilt, and the accused need not make any statement against his will. These propositions emanate from an apprehension that if compulsory examination of an accused were to be permitted then force and torture may be used against him to entrap him into fatal contradictions. The privilege against self-incrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice.In one of the impugned judgments, it was reasoned that all citizens have an obligation to co- operate with ongoing investigations. For instance reliance has been placed on Section 39, CrPC which places a duty on citizens to inform the nearest magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in the section. Attention has also been drawn to the language of Section 156(1), CrPC which states that a police officer in charge of a police station is empowered to investigate cognizable offences even without an order from the jurisdictional magistrate.Likewise, Section 161(1), CrPC which empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. While the overall intent of these provisions is to ensure the citizens' cooperation during the course of investigation, they cannot override the constitutional protections given to accused persons. The scheme of the CrPC itself acknowledges this hierarchy between constitutional and statutory provisions in this regard. For instance, Section 161(2), CrPC prescribes that when a person is being examined by a police officer, he is not bound to answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture.Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence. At the trial stage, Section 313(3)21 of the CrPC places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, Proviso (b) to Section 315(1) of CrPC mandates that even though an accused person can be a competent witness for the defence, his/her failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the trial. It is evident that Section 161(2), CrPC enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and Proviso (b) to Section 315(1) of the same code, adverse inferences cannot be drawn on account of the accused person's silence during the trial stage.

21 The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

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Right to Fair Trial The term fair trial is a legal and ethical concept used to describe the procedural rules of a court and the treatment of those accused of a crime. According to democratic ideals, a fair trial is one in which the defendant's rights are respected throughout the trial, the trial is handled according to due process and established law, and the judgment is handed down by a neutral body. Ensuring a fair trial is what governs many of the standard procedural rules of courts in many regions, but the right to this treatment is by no means globally ensured. Many human rights groups seek to improve trial legislation throughout the world to increase the opportunity for justice worldwide.A fair trial generally requires two things: the neutrality of the judge or jury, and the just treatment of the defendant. The concept of “innocent until proven otherwise” is an important one when considering this issue, as an assumption of guilt before a duly processed trial undermines the whole concept of neutrality.The Right to a Fair Trial means that people can be sure that processes will be fair and certain. It prevents governments from abusing their powers. A Fair Trial is the best means of separating the guilty from the innocent and protecting against injustice. Without this right, the rule of law and public faith in the justice system collapse. The Right to a Fair Trial is one of the cornerstones of a just society.The right of refusal to answer questions that may incriminate a person is a procedural safeguard which has gradually evolved in common law and bears a close relation to the `right to fair trial'. There are competing versions about the historical origins of this concept. Some scholars have identified the origins of this right in the medieval period. In that account, it was a response to the procedure followed by English judicial bodies such as the Star Chamber and High Commissions which required defendants and suspects to take ex officio oaths. These bodies mainly decided cases involving religious non-conformism in a Protestant dominated society, as well as offences like treason and sedition. Under an ex officio oath the defendant was required to answer all questions posed by the judges and prosecutors during the trial and the failure to do so would attract punishments that often involved physical torture. It was the resistance to this practice of compelling the accused to speak which led to demands for a `right to silence'.Examination of witnesses by police

A witness is a person who knows the facts and circumstances of a case. His evidence is crucial for the prosecution of the accused. The final outcome of a case depends heavily on the evidence given by the witnesses. The witnesses too have certain rights which they need to exercise and demand to exercise to counter police malpractices. The Criminal Procedure code lays down the procedure for questioning witnesses and the Supreme Court had laid down guidelines that have to be followed by the police at the time of interrogation and at the time of questioning witnesses.

Under section 161 Cr.P.C. any person who is a witness may be called to the police station for questioning. Any person whose name does not appear in the charge-sheet or who has not given any statements to the police may also be examined under section 311 of Cr.P.C. In certain circumstances the court may appoint a commission to examine a witness under Section 284 of the Criminal Procedure code.

Women and children below 15 years cannot be called to the police station for questioning. They must be questioned in their homes in the presence of their relatives or friends.

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During interrogation, the witness will be questioned orally by the police. He need not make any promises. It is the duty of the witness to faithfully answer the questions put by the police officer.

The witness must not make any statement that may prove him guilty of an offence. The oral examination must be reduced in writing. However, the witness need not sign the statements made by him. The police cannot force the witness to make any statements. The police cannot stop any witness from making any statement or declaration voluntarily.

Section 161 of Cr.P.C22 provides for detailed provision for examination of witness by police which is a part of chapter XII. Statements thus recorded by the investigating officer are known as either 161 statements or case diary statements. They are recorded in the first person namely in the manner in which the witness made the statement.

The purpose of recording the statements is to gather evidence about the commission of the offence and the identity of the accused. Copies of all these statements should be furnished to the accused. Therefore the `right against self-incrimination' protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated.

`To be a witness against oneself' is not confined to the particular offence regarding which the questioning is made but extends to other offences about which the accused has reasonable apprehension of implication from his answer. This conclusion also flows from `tendency to be exposed to a criminal charge'. A `criminal charge' covers any criminal charge then under investigation or trial or which imminently threatens the accused.

Even though Section 161(2) of the Cr.P.C casts a wide protective net to protect the formally accused persons as well as suspects and witnesses during the investigative stage, Section 132 of the Evidence Act limits the applicability of this protection to witnesses during the trial stage. The latter provision provides that witnesses cannot refuse to answer questions during a trial on the ground that the answers could incriminate them. However, the proviso to this section stipulates that the content of such answers cannot expose the witness to arrest or prosecution, except for a prosecution for giving false evidence. Therefore, the protection accorded to witnesses at the stage of trial is not as wide as the one accorded to the accused, suspects and witnesses during investigation [under Section 161(2), Cr.P.C]. Furthermore, it is narrower than the protection given to the accused during the trial stage [under Section 313(3) and Proviso (b) to Section 315(1), Cr.P.C. The legislative intent is to preserve the fact- finding function of a criminal trial. Section 132 of the Evidence Act reads:-“Witness not excused from answering on ground that answer will criminate. - A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind. Proviso. Provided that no such answer, which a witness shall be compelled to give, shall subject him to

22 Section 161, CrPC

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any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer."Since the extension of the `right against self- incrimination' to suspects and witnesses has its basis in Section 161(2), Cr.P.C it is not readily available to persons who are examined during proceedings that are not governed by the code. There is a distinction between proceedings of a purely criminal nature and those proceedings which can culminate in punitive remedies and yet cannot be characterised as criminal proceedings. The consistent position has been that ordinarily Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings. In administrative and quasi-criminal proceedings, the protection of Article 20(3) becomes available only after a person has been formally accused of committing an offence. For instance in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry23, the contention related to the admissibility of a statement made before an inspector who was appointed under the Companies Act, 1923 to investigate the affairs of a company and report thereon. It had to be decided whether the persons who were examined by the concerned inspector could claim the protection of Article 20(3). The question was answered and is summed up as following: the scheme of the relevant sections is that the investigation begins broadly with a view to examine the management of the affairs of the company to find out whether any irregularities have been committed or not. In such a case there is no accusation, either formal or otherwise, against any specified individual; there may be a general allegation that the affairs are irregularly, improperly or illegally managed ; but who would be responsible for the affairs which are reported to be irregularly managed is a matter which would be determined at the end of the enquiry. At the commencement of the enquiry and indeed throughout its proceedings there is no accused person that has committed the offence. A general enquiry and investigation into the affairs of the company thus contemplated cannot be regarded as an investigation which starts with an accusation contemplated in Article 20(3) of the Constitution.A similar issue arose for consideration in Romesh Chandra Mehta v. State of West Bengal24, wherein it was held normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial of the offence. Where a Customs Officer arrests a person and informs that person of the grounds of his arrest, [which he is bound to do under Article 22(1)25 of the Constitution] for the purpose of holding an inquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act which is punishable at the trial before a Magistrate, there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate.In Balkishan A. Devidayal v. State of Maharashtra26, one of the contentious issues was whether the statements recorded by a Railway Police Force (RPF) officer during an inquiry under the Railway Property (Unlawful Possession) Act, 1996 would attract the protection of

23 [1961] 1 SCR 417.24 [1969] 2 SCR 46125 (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice26 (1980) 4 SCC 600.

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Article 20(3). Sarkaria, J. held that such an inquiry was substantially different from an investigation contemplated under the Cr.P.C, and therefore formal accusation was a necessary condition for a person to claim the protection of Article 20(3). It was observed, only a person against whom a formal accusation of the commission of an offence has been made can be a person `accused of an offence' within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an FIR or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in court. In the instant case no such formal accusation has been made against the appellant when his statements in question were recorded by the RPF Officer.The language of Section 161, Cr.P.C protects the accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. It would also be useful to refer to Sections 162, 163 and 164 of the Cr.P.C which lay down procedural safeguards in respect of statements made by persons during the course of investigation.

The 180th Report of the Law Commission of India (May 2002) dealt with this very issue. It considered arguments for diluting the `rule against adverse inferences from silence'. Apart from surveying several foreign statutes and decisions, the report took note of the fact that Section 342(2) of the Code of Criminal Procedure, 1898 permitted the trial judge to draw an inference from the silence of the accused. However, this position was changed with the enactment of the new Code of Criminal Procedure in 1973, thereby prohibiting the making of comments as well as the drawing of inferences from the fact of an accused's silence..

Evolution of the law on `medical examination'

With respect to the testimonial-physical distinction, an important statutory development in our legal system was the introduction of provisions for medical examination with the overhauling of the Code of Criminal Procedure in 1973. Sections 53 and 54 of the Cr.P.C contemplate the medical examination of a person who has been arrested, either at the instance of the investigating officer or even the arrested person himself. The same can also be done at the direction of the jurisdictional court. However, there were no provisions for authorising such a medical examination in the erstwhile Code of Criminal Procedure, 1898. The absence of a statutory basis for the same had led courts to hold that a medical examination could not be conducted without the prior consent of the person who was to be subjected to the same.If it were permitted forcibly to take hold of a prisoner and examine his body medically for the purpose of qualifying some medical witness to give medical evidence in the case against the accused there is no knowing where such procedure would stop.S.K. Ghose, J. concurred, held in Bhondar v. Emperor27, the examination of an arrested person in hospital by a doctor, not for the benefit of the prisoner's health, but simply by way of a second search, is not provided for by Code, and is such a case the doctor may not examine the prisoner without his consent. It would be a rule of caution to have such consent noted in the medical report, so that the doctor would be in a position to testify to such consent if called upon to do so.

27 AIR 1931 Cal 601

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A similar conclusion was arrived at by Tarkunde, J. in Deomam Shamji Patel v. State of Maharashtra28, who held that a person suspected or accused of having committed an offence cannot be forcibly subjected to a medical examination. It was also held that if police officers use force for this purpose, then a person can lawfully exercise the right of private defence to offer resistance.Whether Art. 20(3) applicable to Civil Investigation ?Some High Court decisions which have relied on Kathi Kalu Oghad29 to approve the taking of physical evidence such as blood and hair samples in the course of investigation. Following the overhaul of the Code of Criminal Procedure in 1973, the position became amply clear. In recent years, the judicial power to order a medical examination, albeit in a different context, has been discussed by this Court in Sharda v. Dharampal30. In this case, the contention related to the validity of a civil court's direction for conducting a medical examination to ascertain the mental state of a party in a divorce proceeding. Needless to say, the mental state of a party was a relevant issue before the trial court, since insanity is a statutory ground for obtaining divorce under the Hindu Marriage Act, 1955. S.B. Sinha, J. held that Article 20(3) was anyway not applicable in a civil proceeding and that the civil court could direct the medical examination in exercise of its inherent powers under Section 151 of the Code of Civil Procedure, since there was no ordinary statutory basis for the same. It was observed :"Yet again the primary duty of a court is to see that truth is arrived at. A party to a civil litigation, it is axiomatic, is not entitled to constitutional protections under Article 20 of the Constitution of India. Thus, the civil court although may not have any specific provisions in the Code of Civil Procedure and the Evidence Act, has an inherent power in terms of Section 151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit.Reference to the circumstances existing at the time of the passing of the statute does not, therefore, mean that the language used, at any rate, in a modern statute, should be held to be inapplicable to social, political and economic developments or to scientific inventions not known at the time of the passing of the statute. For example it does not mean that the language of an old statute can be construed to embrace something conceptually different. The guidance on the question as to when an old statute can apply to new state of affairs not in contemplation when the statute was enacted was furnished by Lord Wilberforce in his dissenting speech in Royal College of Nursing of the U.K. v. Dept. of Health and Social Security31, which is now treated as authoritative Lord Wilberforce said, in interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the new subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question, `What would Parliament have done in this current case, not being

28 AIR 1959 Bom 284.29 Supra note 630 Supra note 1331 [1981] AC 800

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one in contemplation, if the facts had been before it?' attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.It is perhaps difficult to attribute to a legislative body functioning in a static society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.In light of this discussion, there are some clear obstructions to the dynamic interpretation of the amended Explanation to Sections 53, 53-A and 54 of the CrPC. Firstly, the general words in question, i.e. `and such other tests' should ordinarily be read to include tests which are in the same genus as the other forms of medical examination that have been specified. Since all the explicit references are to the examination of bodily substances, we cannot readily construe the said phrase to include the impugned tests because the latter seem to involve testimonial responses. Secondly, the compulsory administration of the impugned techniques is not the only means for ensuring an expeditious investigation. Furthermore, there is also a safe presumption that Parliament was well aware of the existence of the impugned techniques but deliberately chose not to enumerate them. Hence, on an aggregate understanding of the materials produced before us we lean towards the view that the impugned tests, i.e. the Narco Analysis technique, polygraph examination and the BEAP test should not be read into the provisions for `medical examination' under the Code of Criminal Procedure, 1973.Prior to the enactment of an express provision for medical examination in the Cr.P.C, it was observed in Mahipal Maderna v. State of Maharashtra32, that an order requiring the production of a hair sample comes within the ordinary understanding of `investigation'. We must also take note of the decision in Jamshed v. State of Uttar Pradesh33 wherein it was held that a blood sample can be compulsorily extracted during a `medical examination' conducted under Section 53 of the Cr.P.C. At that time, the collection of blood samples was not expressly contemplated in the said provision. Nevertheless, the Court had ruled that the phrase `examination of a person' should be read liberally so as to include an examination of what is externally visible on a body as well as the examination of an organ inside the body. We must also refer back to the substance of the decision in Sharda v. Dharampal34, which upheld the authority of a civil court to order a medical examination in exercise of the inherent powers vested in it by Section 151 of the Code of Civil Procedure, 1908. The same reasoning cannot be readily applied in the criminal context. Despite the absence of a statutory basis, it is tenable to hold that criminal courts should be allowed to direct the impugned tests with the subject's consent, keeping in mind that there is no statutory prohibition against them either.

32 1971 Cri L J 1405 (Bom).33 1976 Cri L J 1680 (All).34 Supra Note13

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Another pertinent contention raised by the appellants is that the involvement of medical personnel in the compulsory administration of the impugned tests is violative of their professional ethics. In particular, criticism was directed against the involvement of doctors in the Narco Analysis technique and it was urged that since the content of the drug- induced revelations were shared with investigators, this technique breaches the duty of confidentiality which should be ordinarily maintained by medical practitioners. The counsel have also cited the text of the `Principles of Medical Ethics' adopted by the United Nations General Assembly [GA Res. 37/194, 111th Plenary Meeting] on December 18, 1982. This document enumerates some `Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture, and other cruel, inhuman or degrading treatment of punishment'. Emphasis was placed on Principle 4 which reads: Principle 4It is a contravention of medical ethics for health personnel, particularly physicians: To apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments.In the Indian context, the statutory provisions for directing a medical examination are an example of the same. Fields such as forensic toxicology have become important in criminal- justice systems all over the world and doctors are frequently called on to examine bodily substances such as samples of blood, hair, semen, saliva, sweat, sputum and fingernail clippings as well as marks, wounds and other physical characteristics. A reasonable limitation on the forensic uses of medical expertise is the fact that testimonial acts such as the results of a psychiatric examination cannot be used as evidence without the subject's informed consent. Results of impugned tests should be treated as `personal testimony'.Ordinarily evidence is classified into three broad categories, namely oral testimony, documents and material evidence. The protective scope of Article 20(3) read with Section 161(2), CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of Article 20(3) is decided by the trial judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators.We have already stated that the Narco Analysis test includes substantial reliance on verbal statements by the test subject and hence its involuntary administration offends the `right against self-incrimination'. The crucial test laid down in Kathi Kalu Oghad35, is that of `imparting knowledge in respect of relevant fact by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation'. The difficulty arises since the majority opinion in that case appears to confine the understanding of `personal testimony' to the conveyance of personal knowledge through oral statements or statements in writing. The results obtained from polygraph examination or a BEAP test, are not in the nature of oral or written statements. Instead, inferences are drawn from the measurement of physiological responses recorded during the performance of these tests. It could also be argued that tests such as polygraph examination and the BEAP test do not involve a `positive volitional act' on part of the test subject and hence their

35 Supra note 6

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results should not be treated as testimony. However, this does not entail that the results of these two tests should be likened to physical evidence and thereby excluded from the protective scope of Article 20(3). We must refer back to the substance of the decision in Kathi Kalu Oghad36

which equated a testimonial act with the imparting of knowledge by a person who has personal knowledge of the facts that are in issue. It has been recognised in other decisions that such personal knowledge about relevant facts can also be communicated through means other than oral or written statements. For example in M.P. Sharma's case , it was noted that "...evidence can be furnished through the lips or by production of a thing or of a document or in other modes" . Furthermore, common sense dictates that certain communicative gestures such as pointing or nodding can also convey personal knowledge about a relevant fact, without offering a verbal response. It is quite foreseeable that such a communicative gesture may by itself expose a person to `criminal charges or penalties' or furnish a link in the chain of evidence needed for prosecution.We must also highlight that there is nothing to show that the learned judges in Kathi Kalu Oghad37 had contemplated the impugned techniques while discussing the scope of the phrase `to be a witness' for the purpose of Article 20(3). At that time, the transmission of knowledge through means other than speech or writing was not something that could have been easily conceived of. Techniques such as polygraph examination were fairly obscure and were the subject of experimentation in some Western nations while the BEAP technique was developed several years later. Just as the interpretation of statutes has to be often re-examined in light of scientific advancements, we should also be willing to re- examine judicial observations with a progressive lens. An explicit reference to the Lie-Detector tests was of course made by the U.S. Supreme Court in the Schmerber decision, wherein Brennan, J. had observed "To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment."Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject's mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject's physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject's familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact. It is also significant that unlike the case of documents, the investigators cannot possibly have any prior knowledge of the test subject's thoughts and memories, either in the actual or constructive sense. Therefore, even if a highly-strained analogy were to be made between the results obtained from the impugned tests and the production of documents, the weight of precedents leans towards restrictions on the extraction of `personal knowledge' through such means.During the administration of a polygraph test or a BEAP test, the subject makes a mental effort which is accompanied by certain physiological responses. The measurement of these responses then becomes the basis of the transmission of knowledge to the investigators. This knowledge may aid an ongoing investigation or lead to the discovery of fresh evidence which could then be used to prosecute the test subject. In any case, the compulsory administration of the impugned

36 Ibid37 Ibid

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tests impedes the subject's right to choose between remaining silent and offering substantive information. The requirement of a `positive volitional act' becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition. In light of the preceding discussion, we are of the view that the results obtained from tests such as polygraph examination and the BEAP test should also be treated as `personal testimony', since they are a means for `imparting personal knowledge about relevant facts'. Hence, our conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the N arco Analysis technique, polygraph examination and the BEAP test) come within the scope of `testimonial compulsion', thereby attracting the protective shield of Article 20(3).In Ananth Kumar Naik v. State of Andhra Pradesh38, where it was held : S. 53 provides that while making such an examination such force as is reasonably necessary for that purpose may be used. Therefore, whatever discomfort that may be caused when samples of blood and semen are taken from an arrested person, it is justified by the provisions of Sections 53 and 54, CrPC." We can also refer to the following observations in Anil Anantrao Lokhande v. State of Maharashtra39 " ... Once it is held that Section 53 of the Code of Criminal Procedure does confer a right upon the investigating machinery to get the arrested persons medically examined by the medical practitioner and the expression used in Section 53 includes in its import the taking of sample of the blood for analysis, then obviously the said provision is not violative of the guarantee incorporated in Article 21 of the Constitution of India."This line of precedents shows that the compelled extraction of blood samples in the course of a medical examination does not amount to `conduct that shocks the conscience'. There is also an endorsement of the view that the use of `force as may be reasonably necessary' is mandated by law and hence it meets the threshold of `procedure established by law'. In this light, we must restate two crucial considerations that are relevant for the case before us. Firstly, the restrictions placed on `personal liberty' in the course of administering the impugned techniques are not limited to physical confinement and the extraction of bodily substances. All the three techniques in question also involve testimonial responses. Secondly, most of the above-mentioned cases were decided in accordance with the threshold of `procedure established by law' for restraining `personal liberty'. However, in this case we must use a broader standard of reasonableness to evaluate the validity of the techniques in question. This wider inquiry calls for deciding whether they are compatible with the various judicially-recognised dimensions of `personal liberty' such as the right to privacy, the right against cruel, inhuman or degrading treatment and the right to fair trial.

(b) Indian Evidence Act

Narco Analysis has been the most debated topic amongst the legal fraternity, media and common masses. With recent advent of technologies in every sphere of life, criminal investigation is no more left out of its effects. Narco Analysis is one of such scientific forms of investigation in which some sort of statement from the accused is acquired which might form an evidence. The Evidence Act is completely silent on such employment of scientific process. Such process has often been criticized as against the tenets of Constitution and on the other hand has been upheld as a necessity to evaluate some complicated issues. Here an attempt has been made at analyzing the evidentiary value of Narco Analysis.

38 1977 Cri L J 1797 (A.P.).39 1981 Cri L J 125

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When it has been used? The first Narco Analysis was done in the Forensic Science Laboratory, Bangalore in 2001 on an individual associated with offences committed by Veerappan. For conducting the test, NHRC has laid down certain guidelines to the effect that the test should only be administered if the consent of the subject is obtained before a Magistrate and therefore, the police cannot by themselves conduct the test whenever they deem appropriate.These techniques are equally relevant in cases where conventional forms of crime have assumed immense proportion, say in the form of public outcry, or to make up for shortfalls in investigative processes, say, the instance of Abdul Karim Telgi in the stamp paper scam and several other suspects in the Aarushi murder case. They differ from usual investigative techniques in that they involve a certain degree of cooperation from the accused. Such cooperation need not be voluntary and in fact is often coercive in nature.The law on the status of scientific tests for evidentiary purposes still is not absolutely clear. Recently, a Sessions Court in Faizabad in Uttar Pradesh accepted the report of a Narco Analysis test, stating that it is evidence which can be relied upon, to reject a bail application in respect of a murder case. Fortunately, it was expressly treated as evidence only with respect to the bail application to indicate something of the nature of a prima facie case, and not for proving the statements of the accused against him to convict him.It is interesting to note that the Forensic Science Laboratory in Gandhinagar in fact refused to conduct the test on a suspect when he did not give his consent. The Magistrate nevertheless ordered the laboratory to conduct the test. In 2006, in Krushi Coop. Bank case, however, the Supreme Court stayed the order of a Metropolitan Judge to conduct Narco Analysis.The scientific tests may be employed in two ways, that is, they may directly be used as evidence in court in a trial or they may be used merely as clues for investigation. Where the tests involve the making of a statement, they may be directly adduced in evidence, provided they do not amount to a confession because proof of a confession before a police officer or in the custody of a police officer is prohibited. However, if the statements are merely admissions, they may be adduced in evidence. Alternately, where no statement has been made or the statement cannot be adduced without an interpretation of the report prepared at the end of the test, the results of the test as interpreted by an expert may be furnished to the court.A third alternative is whereby the statements may be used as proof of the specific knowledge of the accused with regard to those facts, information about which has resulted in subsequent discoveries during the course of the investigation. Lastly, they may be used merely as clues for the investigation, where the statements are not adduced at all in evidence. However, the evidence gathered from the investigation is independently used in evidence, without the statements.

Narco Analysis - ReliabilityEver since the first reported use of criminal Narco-analysis in 1922, the process has been under the scanner with absolutely unflattering results. It is no longer used for therapeutic purposes anywhere in the world though in the 1930s it was used for psychotherapy. Narco-analysis was later extensively experimented with by the US armed forces and the intelligence agencies, especially around the time of the World Wars. However, so far as getting to the truth is concerned, even they did not find Narco-analysis a great success.The studies conducted in the area have also concluded that the person might start talking more uninhibitedly, but that he would speak the truth is certainly not certain. Narco-analysis, thus, t0akes away the stops off one’s mind and whatever is on the surface of the mind gushes out. This, obviously, does not mean that all of it is true because human beings do not always think of

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the true, concrete and actual facts but also about dreams, wishes and fantasies. There can be a situation when after intense interrogation, all that the person has on his mind is the crime and might also start associating himself closely with the thoughts and feeling of the interrogator about the crime. In such a situation if the person is subjected to Narco-analysis, his statements might start reflecting the interrogators thoughts inextricably mingled with his own thoughts, the true facts and the images that cropped up in his mind during the investigation. This could mislead the investigation and may also lead to miscarriage of justice in part or in whole. The courts across the world are aware of this position.

Evidentiary value of Narco Analysis

The Constitution of India has clearly stated that a person cannot be compelled to be a witness against himself, and therefore, any statement given during the Narco Analysis test cannot be considered evidence in the constitutional framework of the country. In fact, studies have shown that sometimes the subject (person undergoing the test) gives false statements during the test. If the test was given evidentiary value, the police would harass innocent persons under the garb of tackling terrorism. The principle of the Indian legal system is based on the fact that until proved guilty, a person is innocent and we cannot convict an innocent even if we need to surrender hundred criminals. With such objectives in mind subjecting a person to Narco Analysis without his consent will be surely undermining his individual rights which are absolutely negating the principle of a right based society.Narco Analysis is carried out only after a detailed medical examination of the accused. If the accused is found medically fit to undergo the procedure, then only will it be done, otherwise not. However, it has been argued in various cases that sodium pentathol or sodium amytal is a barbiturate and thus has ill effects on the body.The use of evidence obtained under duress has been prohibited by the Human Rights Committee by stating the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment . The Committee has further stated that, the law should require that evidence provided by any form of compulsion is wholly unacceptable.Protection against self-incrimination was instrument for the protection of the innocent and not intended for the acquittal of the guilty. The framers of the Bill of Rights believed the rights of society were paramount to the rights of the criminal. Believing in the same principle in a spate of high-profile cases, such as those of the Nithari killers, the Mumbai train blasts, Aarushi murder case, Malegaon blasts and the most recent Mumbai blasts case suspects have been made to undergo Narco Analysis, drugged with the sodium pentathol.Judiciary and the State Government seem to have supported this practice. Furthering its support the Supreme Court has held that the right to life includes right to health but subjecting a person to a scientific test as part of investigation will not amount to denial of health. Therefore it will not amount to denial of reasonable and just procedure.The Bombay High Court, in a significant verdict in Ramchandra Ram Reddy v. State of Maharashtra, upheld the legality of the use of P300 or brain mapping and Narco Analysis test. The Court also said that evidence procured under the effect of Narco Analysis test is also admissible. As crimes going hi-tech and criminals becoming professionals, the use of Narco Analysis can be very useful, as the conscious mind does not speak out the truth, unconscious may reveal vital information about a case. The judgment also held that these tests involve minimal bodily harm. Surender Koli, main accused in the Nithari case, was brought to Forensic

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Science Laboratory in Gandhinagar in January 2007 for Narco Analysis. Polygraph test was conducted on Moninder Singh Pandher and his servant Surender Koli, accused of serial killing of women and children in Nithari, to ascertain the veracity of their statements made during their custodial interrogation. Various confessional statements were made by the accused under the effect of the drug, he could remember the names of the females he had murdered and revealed his urge to rape them after murdering them.

Post Selvi case: highlighting the present position

In Selvi v. State of Karnataka40, the Supreme Court rejected the High Courts reliance on the supposed utility, reliability and validity of Narco Analysis and other tests as methods of criminal investigation. First, the Court found that forcing a subject to undergo Narco Analysis, brain-mapping, or polygraph tests itself amounted to the requisite compulsion, regardless of the lack of physical harm done to administer the test or the nature of the answers given during the tests. Secondly, the Court found that since the answers given during the administration of the test are not consciously and voluntarily given, and since an individual does not have the ability to decide whether or not to answer a given question, the results from all three tests amount to the requisite compelled testimony to violate Article 20(3).The Supreme Court found that Narco Analysis violated individual’s right to privacy and amounted to cruel, inhuman or degrading treatment. Article 21 protects the right to life and personal liberty, which has been broadly interpreted to include various substantive due process protections, including the right to privacy and the right to be free from torture and cruel, inhuman, or degrading treatment.However, 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. The Supreme Court left open the possibility for abuse of such tests when it provided a narrow exception, almost as an afterthought, namely, that information indirectly garnered from a voluntary administered test i.e. discovered with the help of information obtained from such a test can be admitted as evidence. The power of the police to coerce suspects and witnesses into voluntarily doing or not doing certain things is well known. It is highly probable that the same techniques will be applied to get suspects or witnesses to agree to Narco Analysis and other tests, resulting in a mockery of the essence of the Supreme Court’s judgment.The Narco Analysis test does not carry any evidentiary value and the Constitution of India (Article 20) is an absolute injunction against any attempt to make a law giving evidentiary value to it. A person is said to have given a free statement when he is in a conscious state. And the value of a statement as an evidence depends on the freeness of the statement. If a statement is made by a person under the influence of any threat, drugs, alcohol or anything that takes of a person‘s consciousness, then no evidentiary value can be given to such a statement. The Constitution of India is having certain provisions ensuring that no one can compel a person to be a witness against himself, then how can a statement given during the Narco Analysis test be considered as evidence in the constitutional framework of the country. There is no scientific evidence also to show that this is a test where the truth can be got from a person in a really foolproof manner. But some scientific studies have shown that many times the person

40 Supra note 5

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undergoing the test gives false statements. According to the section 3 of the Indian Evidence Act, 1872, "Evidence" means and includes— (1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) All documents produced for the inspection of the Court; such documents are called documentary evidence. Now the questions is that whether any answer received as a result of Narco Analysis test would be evidence‘ within this section or not. Obviously such a statement would not form part of evidence unless it satisfies some other tests. If any statement has been permitted or required by the Court it does not become admissible in evidence. Court may admit or may not admit it. Admissibility would depend upon number of factors. Sections 24 to 30 of the Indian Evidence Act deal with the admissibility of confession by the accused persons in criminal cases. But the expression confession is not defined in the said Act. Shortly stated a confession is a statement made by an accused admitting his guilt. The term statement includes both oral and written statement. In reference to Narco Analysis test it can be said that if the subject orally states or even writes down something then both will amount to confession. But provision of Sections 24 to 27 of the Indian Evidence Act would bar statement from being admissible in evidence because if there is the slightest doubt about coercion or intimidation or any type of fear that the statement was not free or that immediate before such test the subject was harassed by the Police or was coerced then such statement would be meaningless. Section 24 (12) of the Indian Evidence Act specially bars such statement. The revelation made during the Narco Analysis test have been found most often to be of very useful in solving many sensational cases. In most of these cases, the statements made have led to the discovery of important information‘s and consequently various recoveries have been made under section 27 of the Indian Evidence Act, in large number of cases. It is clear that the information referred to in Section 27 is admissible because it is voluntary deposition. But if the information has been obtained by the use of compulsion, Article 20(3) will be violated and the information will be inadmissible. SC has recognized that the protective scope of art. 20(3) available to the accused in the investigation stage also in criminal cases and when it is read with section 161(2) of CrPC. then it will protect the accused and witness also who are examined during an investigation. According to section 161 (2) of the Cr. P.C. a person is legally bound to answer every question put to him truthfully during the course of investigation. The greatest virtue of law is its flexibility and thus its applicability should not be rigid but be flexible. Moreover, law is not static but it is dynamic. Hence it should keep changing according to requirement and changes in society, science, technology, and ethics and so on. The legal system should absorb developments and advances that take place in science and others till they are for the welfare of the society and they do not violate fundamental legal principles. Therefore there is a need that the better refined and sophisticated methods replace the third degree methods. Narco Analysis test can evolve as viable effective alternative to barbaric third degree methods. If a question which does not have the tendency to incriminate the accused succeeds in extracting a confession or statement from him, the usage of the scientific method cannot be said to violate Art. 20(3) of our Constitution.

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3.4 NHRC Guidelines

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 `Narco Analysis 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.

Chapter 4 International Perspective

4.1 Introduction

It is explicitly proclaimed in Article Ten of the Universal Declaration of Human Rights, the Sixth Amendment of the US Constitution, and Article Six of the European Convention of Human Rights. Moreover, article 14.3(g) of the U.N. Covenant on Civil and Political Rights, 1966, provides: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality. “Not to be compelled to testify against himself or confess guilt.”

4.2 European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950

Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, provides: “In the determination of his civil rights and obligations, or of any criminal charges against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” It was further explained that although not specifically mentioned in Article 6 of the Convention, there can be doubt that the right to remain silent under the police questioning and the privilege

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against self-incrimination are generally recognized international standards which lie at the heart of the notion of a fair procedure under Article 6. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoid miscarriages of justice and to securing the aim of Article 6. It is a general immunity, possessed by all, from being compelled on pain of punishment to answer questions and the answer, may incriminate them.The similar kind of points are found it the constitution of India were the different articles clearly gives certain rights to the accused regarding these matters, somehow these things boosts the already existing points of Indian legislation.

4.3 International Covenant on Civil and Political Rights (ICCPR)

The Preamble of the International Covenant on Civil and Political Rights (ICCPR) states the following: The States party to the present Covenant, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person, Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights, Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, Realizing that the individual, respect for, and observance of, human rights and freedoms, Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant.

Part 3, Article 7 of the International Covenant on Civil and Political Rights (ICCPR) states the following, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation” The use of the truth serum test in considered as a torture in the international regime. The UN definition of torture clearly implies that the tests performed for obtaining information from suspects, amounts to severe mental suffering or coercion, hence, leading to torture. It has been evidently stated by the UN Committee against Torture that an authorized mode of application of ‘moderate physical pressure’ breaches the convention against torture. The use of evidence obtained under duress has been prohibited by The Human Rights Committee by stating-“the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.’’ The Committee has further stated that, “the law should require that evidence provided by … any… form of compulsion is wholly unacceptable.” Use of drugs has been documented as a form of torture in a number of countries, including Chile and the former Soviet Union. It has also been noted that under US case laws confessions made under the influence of truth serums are also not “voluntary” and are consequently inadmissible as evidence. India has still not ratified The UN Convention against Torture, though it has signed the same.

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4.6 UNIVERSAL DECLARATION OF HUMAN RIGHTS

The Universal Declaration was adopted by the General Assembly of the United Nations on 10 December 1948. The Universal Declaration is not a treaty, so it does not directly create legal obligations for countries. It is an expression of the fundamental values which are shared by all members of the international community. And it has had a profound influence on the development of international human rights law. Some argue that because countries have consistently invoked the Declaration for more than sixty years, it has become binding as a part of customary international law.Article 3 - Everyone has the right to life, liberty and security of person. This art. Is similar to art. 21 of Indian Constitution. Here right to life does not mean a mere substinence rather it means right to live dignified life. Article 5 - No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.Article 12 - No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 19 - Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

4.7 Views of United States Judiciary:

US judiciary on the polygraph The US Courts exercise great caution when dealing with reports of the polygraph test. In the Supreme Court case of United States v. Scheffer41,the majority stated that, “There is simply no consensus that polygraph evidence is reliable,” and that, “unlike other expert witnesses who testify about factual matters outside the jurors” knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion.”42 In 2005, the 11th Circuit Court of Appeals stated that “polygraphy did not enjoy general acceptance from the scientific community”.43 Thus, polygraph is still some distance from being the acceptable criminal investigation tool in the US.

On the accuracy of brain mapping several studies have been conducted with regard to the accuracy and the validity of the brain mapping tests. As with the lie-detector test, the usefulnessof the brain-mapping test too is plagued by the varying techniques that are used in the different laboratories.44 The American Academy of Neurology conducted an extensive study, concluding that the test is “not recommended for use in civil or criminal judicial proceedings.”45 The Society of Nuclear Medicine Brain Imaging Council concluded that the use of neuroimaging in criminal

41 523 U.S. 303 (1998).42 Id.43 United States of America v. Wyatt Henderson, 409 F.3d 1293, available at http://www.usdoj.gov/crt/briefs/henderson.pdf (Last visited on October 3, 2008).44 Alverson et al, Brain mapping: Should this controversial evidence be excluded?, FEDERATIONOF INSURANCE & CORPORATE COUNSEL QUARTERLY (1998) available at http://findarticles.com/p/articles/mi_qa3811/is_199801/ai_n8798427 (Last visited on October 9, 2008) citing American Academy of Neurology, Assessment: EEG Brain Mapping, 39 NEUROLOGY 1100 (1989).

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and other types of forensic situations remained especially controversial because there were very few controlled experimental studies. American Courts have considered the question as to whether the evidence gathered from brain mapping could be admissible in court, and have categorically concluded in the negative. In State v. Zimmerman, a case of a conviction for murder, the Arizona Court of Appeals, upheld the decision of the trial court, which had excluded evidence of brain mapping, concluding that the test.

Daubert Standard

Daubert Standard is a legal precedent set in 1993 by the Supreme Court of the United States in Daubert v. Merrle Dow Pharmaceuticals, 509 U.S. 579 (1993). Daubert motion is brought in before or during trial for the exclusion of the testimony of an expert witness, who, in the opinion of those raising the objection, is either not an expert witness or has used questionable means to obtain the information or the inference he draws are based largely on speculation. According to the US Supreme Court, for any scientific evidence to be of use in legal proceedings there are four 0essentials to be satisfied. These are:

1. The theory or technique must be falsifiable, refutable, and testable.

2. It should have been subjected to peer review and publication.

3. Its potential error rate should be known and also the existence and maintenance of standards concerning its operation.

4. The theory and technique should also be generally accepted by a relevant scientific community.

Chapter 5 conclusion

5.1 Introduction

It is now an established fact that the practice of Narco Analysis without consent of the accused person is unconstitutional. It is still being practiced in India without any barrier and such instances are increasing remarkably. The highest judiciary of India has observed that the Narco Analysis test can be carried out with the consent of the accused or witness, which should not be allowed. On comparative analysis with the American view point it is clearly mentioned by the judiciary that such type of truth test is way away from getting legally acceptance. As we know that this test is very harmful to the person upon whom it is administered, not only physically but psychologically. The concept of ‘consent’ is itself controversial in such cases, because it can be extracted from the person forcefully. The consent should be free and informed. Can it ever be imagined that any accused would give his consent to such a test freely if he is fully aware of the side effects of test over his body and mind. Even if it is assumed that the accused has given his free informative consent, then also the question arises that whether a person can waive his fundamental rights provided under the Article 20 and 21. As held by the Supreme Court of India in various cases our fundamental rights are beyond relinquishment. 45 Id., citing American Academy of Neurology and American Clinical Neurophysiology Society,Assessment: Digital EEG, Quantitative EEG and EEG Brain Mapping, 49 NEUROLOGY277 (1997).

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This evil of Narco Analysis test is being practiced in India just because of a mutual understanding between the judiciary, police, investigative agencies, human rights activists, etc. Only strong public opinion in support of human rights will be able to influence judicial decisions, and so also the decisions and practices of various professions. A sustained legal awareness campaign in this regard should be taken up by the people of India, for the furtherance of their democratic rights, against the use of harmful invasive methods like Narco Analysis.

A few democratic countries, India most notably, still continue to use Narco Analysis with comparison to the US judicial approach. The issue of using Narco Analysis test as a tool of interrogation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be clearer in the near future. There have been orders of various High Courts upholding the validity of Narco Analysis. These judgments are in stark contrast with the earlier judgments of the Supreme Court interpreting Art. 20(3). The veracity lies in the fact that Narco Analysis is still a nascent interrogation technique in the Indian criminal justice system without any rules or guidelines.

We should be cautious while using this test and should take informed free consent of the person upon whom it is being administered. Further, we should use this test in the rarest of the rare cases, where investigation would not be possible without such test. Furthermore, it should be used only for the purpose of circumstantial evidence reading Sections 6 and 27 of the Indian Evidence Act with Article 20(3). For this purpose, it is essential that the Union and State Governments should properly implement the NHRC guidelines providing for proper and effective use of this test with least harm to the concerned person.

5.2 Criticism

Narco Analysis has been criticised on the following grounds: Narco Analysis test is violative of various fundamental rights of the accused person which has been conferred upon him by the Constitution of India. Infringement of these rights of any person is not allowed in any situation. It is violative of his right to life and personal liberty. In this context right to life does not mean a mere animal sustenance rather it mean to have a dignified life and by making the accused person to undergo such test without his free consent will result into violation of his fundamental right of right to life and personal liberty. Every person has a liberty to choose whether he want to undergo Narco Analysis test and he cannot be compelled to undergo the same.

Furthermore, the Narco Analysis test also violates the right to remain silent of the accused person which is not directly conferred upon him by the Constitution of India. It has been conferred to the accused person through art.19(1)(a) which is right to speech which in itself include that a person has a right not to speak if he is not willing. When a accused if made to undergo Narco Analysis test he is forced to speak. In this sense it violates the right to speech.

Thereafter, the Narco Analysis test is also against the principle of self-incrimination. According to which a person cannot be compelled to give a statement which is going against him. We cannot compel any person to make self-harming statements. By forcing the accused person to undergo the Narco Analysis test we force him to make self-harming statement which is not permitted by the Indian Constitution. Narco Analysis test is further voilative of right of accused person to have a fair trial. By making a use of such methods of extracting truth rather than going for proper investigation does not render any trial a fair trial.

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Narco Analysis test is also criticised on the ground that the testimony given by the accused during the Narco Analysis test cannot be relied upon completely and these statements needs corroboration. The reason for not relying upon these statements is that it is very difficult to suggest a correct dose of drug for a particular person. The dose of drug will differ according to the will power, mental attitude and physique of the subject. A wrong dose may bring the subject in coma or in some cases even death may be caused. If the subject has been a drug addict or alcoholic his/her tolerance level will be high and he/she may make fake state of semi-consciousness and can tell lies. For its success a competent and skilled interviewer is who is trained in putting relevant and useful questions.

On ethical grounds it is criticised that a psychiatrist is not a detective. He/she is for treating mental disorders and should not participate in criminal cases.

With help of Narco Analysis test we can extract the specific truthful statements which the accused person is knowingly escaping to make. Though, the person may claim that he/she was insane at the time of the test being conducted and can circumvent justice.

Narco Analysis test result may be doubtful if the test is used for the purposes of confession of crimes. Suspects of crimes may, under the influence of drugs, deliberately withhold information or may give untrue account of incident persistently. Narco Analysis is not recommended as an aid to criminal investigation. In medical uses like in treatment of psychiatric disorders the Narco Analysis may be useful. Unless the test is conducted with the consent of the suspect it should not be used in criminal investigations.

Conclusiveness and inability of Narco tests has been clearly elucidated in the case of State v. Pitts the use of Sodium Amytal in Narco Analysis was prohibited because the results of the interview were not considered scientifically reliable. The court opined that subjects are susceptible to filling in gaps in stories with fabricated detail (hyper amnesia), or believing in false events (memory hardening), and hypnotic recall, where thoughts of non-existent events become embedded in the memory. Therefore the test results should not be regarded as conclusive evidence there should be a need of corroborating statements made during Narco Analysis with other evidences that have been procured.

5.4 Suggestions

After going through various issues related to the constitutionality of Narco Analysis in the light of the laws and human rights, the researcher has reached to bring forth some important suggestions:

Government should train and sensitize the investigating agencies in a better way so that they can enhance their investigating skills and resort to constitutional measures of investigation, rather than to resort to unconstitutional and inhuman measures like Narco Analysis.

The agencies should conform to “informed free consent”. Scientific technique of investigation should not be permitted to the extent they are

violative of human rights and constitute torture. Intelligence systems must be made more sound and efficient and friendly to the person

upon whom the test is being conducted.

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Rules laid down by the National Human Rights Commission (NHRC) must be strictly followed while using any scientific technique in Narco Analysis.

Use of Narco Analysis test should not be permitted in every case as a matter of routine rather it should be permitted in only those cases only where the evidences relating to either conviction or acquittal of the accused could not be reached at by the investigating agencies even after a genuine effort.

It shall also be allowed only in those cases in which it is difficult to find out the necessary evidence to conduct investigation. It should not be an escape-route to surpass the investigative stages.

Finally the cases, in which the test should be applied, should fall in the category of rarest of the rare cases. Now the problem arises how to categorise whether a case is a rarest of rare case or not. For this we can say that rarest of rare cases are those cases where the crime committed is such a heinous crime or has been committed in such a brutal manner that it has shaken the societal conscience and which has disturbed the societal peace. The burning examples of recent cases that can fall under this category are Nirbhaya case and Gudiya case.

Bibliography

Book

a. Satyendra Kumar, Narcoanalysis, brain mapping, hypnosis, and lie detector tests in interrogation of suspect, Alia Law Agency, 2008.

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Article

a. Geo Francis E “Efficacy and Ethics of Narco Analysis” volume no.25 Asvattha , An International Journal of Culture, Philosophy and theology 15 march 2012.

b. Mohan, B.M “Misconceptions about Narco Analysis” Indian Journal of Medical Ethics, vol. no. 1 january 2007, http://www.ijme.in/151cc07:html, last accessed on 16 march 2014

Reports

a. Law Commission Reports

Statues

a. Constitution of India.b. The Code of Criminal Procedure, 1973.c. The Code of Civil Procedure, 1908d. Indian Evidence Act, 1872.

Conventions

a. European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950

b. International Covenant on Civil and Political Rights (ICCPR)c. Universal Declaration of Human Rights.

Websites

a. www.legalserviceindia.com b. http://indiankanoon.org c. www.timesofindia

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