(Study Material for IPS LCE) National Security: NARCO-Analysis a Critical Evaluation By Prof. J.D. Sharma

By: Prof. J.D. Sharma
Courtesy: Ministry of Home Affairs

Abstract

The Narco-Analysis has become an increasingly, perhaps alarmingly, common term in India. This technique has garnered support from certain State Governments as well as the Judiciary in India. There has been a debate for quite a long time whether this can be considered as a scientific and reliable method. An attempt has been made here to critically discuss this technique and to evaluate its admissibility as evidence in the courts.

Introduction

The search for effective aids to interrogation is probably as old as man’s need to obtain information from an uncooperative accused (or subject) and as persistent as his impatience to short cut any tortuous path. In the annals of police investigation, physical coercion has, at times, been substituted for painstaking and time-consuming inquiry in the belief that direct methods produce quick results. But, hardened and manipulative perpetrators often fail the interrogation thus, information and admissible evidences are hard to come by. With the advancement of our knowledge or the reapplication of existing knowledge in a newer specific area has resulted in the emergence of techniques, such as Polygraphy, Brain-mapping andNarco-analysis. The term ‘Narco-analysis’ is derived from the Greek word ‘Narkë’ (meaning “anesthesia or torpor”, and is used to describe a diagnostic and psychotherapeutic technique that uses psychoactive drugs, particularly barbiturates, to induce a state of stupor in which mental elements with strong associated effects come to surface, where they can be exploited by the therapist (or investigating agency). The term ‘Narco-analysis’ was coined by Horseley, but the Narco-analysis first reached the mainstream in 1922, when Robert House, a Texas Obstetrician used the drug scopolamine on two prisoners. But, the therapeutic use was first documented by Dr. William Blackwenn (1930).1 Others2,3,4 demonstrated the usefulness of such drug in procuring diagnostically or therapeutically vital information, and to provide patients with a functional respite from catatonia or mania.

Active Chemical Substances

Sedative and hypnotics that alter higher cognitive function by depressing the Central nervous system include ethanol, scopolamine, 3 quinnuclidinyl benzilate, temazepam and various barbiturates, such as sodium thiopental (commonly known as sodium pentothal), Sodium amytal (amobarbital), seconal are particularly worth mentioning. Scopolamine (an alkaloid of atropine group and is scopine tropate) was the first chemical substance, but nowadays, the barbiturates, particularly the sodium pentothal, is the drug of choice for the Narco-analysis.

The Procedure

The Narco-analysis is conducted by the administration of a hypnotic-sedative, such as sodium pentothal, intravenously into the subject. The dose is calculated as per kg. of the body weight of the subject and the drug is pushed by an Anesthetist (a medical doctor) at the rate of 4ml/min (100mg/min) of a 2.5% solution of sodium pentothal.5 The injection may be preceded by the administration of an ant cholinergic agent and a test dose of the said drug. The dose is dependent on the person’s sex, age, health, physical condition, tolerance and idiosyncrasy. The rate of administration is controlled to drive the subject (accused) slowly into a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated by the Psychiatrist/Forensic Psychologist in conjunction with investigating agency. The anesthesia doctor monitors and maintains the hypnoti trance condition of the subject. The revelation made during this stage are recorded, both in video and audio cassettes. The Forensic Psychologist prepares the report about the revelations, which will be accompanied by the audio-video recordings. The strength of the revelations, if necessary, is further verified by subjecting the person to psychological/criminal profiling, polygraphy and/or the Brain-mapping tests. The Narco-analysis is normally conducted in Government Hospitals or in Forensic Lab where such facilities are created. However, personal consent of the subject and a court order are required for the conduct of the test. In Narco-analysis test, the person’s inhibitions are lowered by the depressing action of the drug at the CNS. In such sleep-like state (or hypnotic trance), it becomes difficult, though not impossible, for him to lie or manipulate the answers. Revelations made by the person under such condition are usually further corroborated by the investigating agencies, and reconstruction of the crime is done.

Discussion

Narco-analysis has become an increasingly, perhaps alarmingly, common term in India. This practice has also garnered support from certain State Governments as well as the Judiciary. While expert studies and court opinions available internationally have granted that there may be some use in Narco-analysis, but the overwhelming evidence is that it is by no means a reliable science. There are two main issues in the acceptance of Narco-analysis test in the Criminal Justice Administration:• Whether Narco-analysis is a reliable scientific test? And• What should be its legal status?A scientific test is one which is based on a solid scientific principle and always give results, which are precise & accurate, reproducible and cross verifiable. Narco-analysis basically is a test in the domain of psychology to provide functional respite from some psychological disorders. There is no direct proven relationship between the administration of so-called truth drugs and revelation of truth. The CIA has admitted that the actual content of what comes out during the Narco-analytic interrogation can be psychotic manifestation…hallucinations, illusion, delusions or disorientation. Psychiatrists hold that some 50% of all individuals are suggestible even while fully conscious, meaning they can be made to believe events that never actually happened. Thus, under the effect of drug, the patient may say things that he wished were true and not that were necessarily true. Further, the effect of the drug should remain same on all subjects, but it varies with the age, sex, health and general conditions of the person thus may give different outcome. In the US, where science often interfaces uncomfortably with the law, the Supreme Court offered four criteria, part of the Daubert standards (1993), by which to judge the credibility of a scientific principle held by a minority of practitioners: hypothesis testing; peer review and publication; knowledge of error rates; and acceptability in the general scientific community. In India, the Narco-analysis is being mainly done at Forensic Labs at Bangalore and Gandhinagar.As per one conservative estimate, both laboratories collectively had carried out the Narco-analysis of around 600 persons by now, but the results of these tests and their parameters were never peer reviewed and the data never published in international research journals for the scientific scrutiny. Further, no controlled studies of sufficiently large relevant samples of criminals are available; no authentic data and no statistical probability data are available. In the absence of above, how Narco-analysis can be regarded as a scientific and reliable technique? American Journal of Psychiatry prohibited the use of Narco-analysis for the purpose of police investigation (111,283-88).

Legal Status

Regarding the legal status of Narco-analysis, one needs to interpret carefully the Article 20(3) of the Indian Constitution and Section 161(2) of the Criminal Procedure Code, 1973. The application of Narco-analysis test involves the fundamental question pertaining to the judicial matters and also Human Rights. The legal position of applying this technique as an investigative technique raises genuine issues like encroachment of an individual’s rights, liberties and freedom. Subjecting the accused to undergo the test as has been done by the investigative agencies in India, is considered by many as a blatant violation of Article 20(3) of the Constitution. It also goes against the “Maxim Nemo Tenetur Se Ipsum Accusare”, i.e. “No person accused of any offence shall be compelled to be a witness against himself.” Thus, Article 20(3) gives privilege to the accused or any person against self-incrimination which, in fact, is a fundamental basis of Common Law of Criminal Jurisprudence. Thus, the unvoluntary confession or other vital information obtained from the accused of the crime by pushing him into a state of hypnotic trance amounts to self-incrimination, thus violates the Article 20(3) of the Constitution. Such evidence thus cannot be made admissible in the courts until some amendments to the said provision occur.The right against forced self-incrimination also widely known as the right-to-silence in enshrined in the Section 161(2) of the Criminal Procedure Code, 1973, which state that “such person shall be bound to answer truly all questions 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”. Thus, the administration of test, like Narco-analysis amounts to forcible intrusion into one’s mind, thereby nullifying the validity and legitimacy of the right-to-silence. Thus, in the light of above facts, the Narcoanalysis test neither can be considered as a scientific and reliable test nor it satisfies the existing golden principles of Indian Laws and Criminal Jurisprudence.

Conclusion

Though nobody wants that terrorists and hardened criminals escape from the clutches of law, but it would be equally unjustified, if knowingly, we resort to such a test, which is not true to science and law. In India, Narco-analysis is gaining some judicial acceptance (for inadvertent reasons) and supports from some enthusiatic Law Enforcement Officers despite being an unreliable and doubtful method. We have to seriously debate about its Legal and Constitutional validity from human perspective. Narco-analysis may yield useful information at times, but such information’s can also be obtained by enhancing investigative capabilities, better policing and training of the personnel. It is the time for Law Enforcement personnel to have a sincere introspection. It is an invasive technique, which amounts to a sophisticated version of the deplorable third-degree method.

Courtesy: Ministry of Home Affairs