At times when human mind is the only place to gather conclusive evidence relating to a crime, narco-analysis is said to be the best resort. But what makes conducting the test problematic is the conclusiveness of the test and the human right concern. In India, the test of Narcoanalysis is being conducted since 2000 by “The Bangalore Forensic Sciences Laboratory”.
The turning point for narco-analysis in India came in 2002, when three months after the Godhra carnage in Gujarat, and the subsequent massacre of Muslims, seven persons accused of burning the train were brought to the Sree Sayaji General (SSG) Hospital in Vadodara for narco-analysis. During the course of the stamp paper investigations, at least five accused, including Abdul Karim Telgi and Mohammed Abdul Waheed Quadri, had been made to undergo narco-analysis. The suspects of infamous Nithari case have also been injected with the truth drug at Gandhinagar hospital. The most recent of these cases has been narco-analysis of Abu Salem in which he reportedly revealed many missing links of various cases he has been involved in. The Arushi Murder Case in May 2008 and the Malegaon Bomb Blast Case are other recent examples.
The foremost criticism leveled against conducting the test is the conclusiveness of the test. According to medical and legal experts, “Individuals who have conscious and unconscious reason for doing so are inclined to confess and yield to interrogation under drug influence; some are able to withhold the information.”
Further, the human rights activists have pointed a finger against subjecting a person without his consent to the test on two grounds that firstly, it violates the principle of Right against Self-Incrimination guaranteed under Article 20(3) of the Indian Constitution and secondly, the Basic Right to privacy under Article 21 of the Indian Constitution. In case of Kharak Singh v. State of UP, Subbha Rao J. was of the opinion that privacy was an essential ingredient of personal liberty under Article 21. In the case of Gobind v. State of MP, the Supreme Court held right to privacy to be included in the right to personal liberty guaranteed under Article 21. However, the Court also held that the right to privacy is not absolute and it can be restricted on the basis of compelling state interest. This is to say that just as the right under Article 21 is subject to restrictions, so is the right to privacy. However, such restriction must be under a procedure established by law.
The result of the tests are not made admissible in the court, it merely aids the investigation procedure. Section 27 Indian Evidence Act provides that a fact discovered in consequence of information received from a person accused of any offence, in the custody of the police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the state’s argument on the situation is this that since it is not made admissible in the court of law thus no where it violates the rights guaranteed to an individual under Article 20(3) and Article 21. But, this is a tenuous argument when the main motive of conducting the test is to get conclusive evidence, then not making it admissible in the courts is only wastage of resources even when the consent of the person is being received is only resulting in wastage of resources, which need to be checked.
Further, arguments which are mounted by state to uphold the test is formulation of Section 25 of Indian Evidence Act with an objective to combat custodial violence for extraction of knowledge and narco-analysis can be seen as a useful tool to combat the problem of custodial violence. Contradictorily, when compared with the UN Definition of Torture, the test of narco-analysis satisfies all the characteristics (UN definition of torture has four components: it produces physical/mental suffering and is degrading; it is intentionally inflicted; it is intended for purposes such as getting information, confessions, etc; and it is inflicted by an official).
State has a responsibility towards public safety, justice dispensation and prevention of crime does qualify as compelling State interest. Narco-analysis plays a vital role in realization of this State interest. But then what needs to be weighed is to what extent in the garb of state responsibility can we do away with the individual rights. 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, in my opinion, 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. But we need to accept the fact that where most of the crimes are taking shape in the mind of a person, narco-analysis will be the apt mechanism. In such a dilemma, we need to create a mechanism so as to preserve the individual right and the state interest. Firstly, following the NHRC (National Human Rights Commission) guidelines to subject a person to the test should be strictly implemented. Then rather making the test results as opinion evidence, we need to make them substantial evidence. The initial implementation of such mechanism may lead to few anomalous situations, but then we need to accept the fact that we always need a law before a ‘good’ law.