INTRODUCTION
Narco-analysis is coined out of a Greek word narco (narkc) meaning numbness or turpor.1 Narcosynthesis is also known as anesthesia (torpor) and it was coined by Robert Horseley2 and this term is also referred to as anesthesia. When the accused is undergoing a narco-analysis test, he or she is injected with sodium pentothal, and this causes a hypnotic/sedative condition in which they are not allowed to imagine3.
Narco analysis is an analysis tracing back to the early 20th century and was first used in psychiatric analysis purposes4. A suggestible state is caused by using drugs such as sodium amytal and sodium pentothal5. It was used as a form of treatment to cure the trauma of soldiers during World War II6. Post-war, it was used by the police, and it was moved to the field of investigation, especially in India, to retrieve information from suspects.
Narco-analysis test is meant to circumvent the misleading disposition of an individual. imagination through placing them in a subconscious state. This is said to inhibit lying, ensuring that the responses are spontaneous and honest. Narco-Analysis is now one of the most. preferred methods of detecting crime in India. Narco-analysis is a type of psychotherapy. where one is put into a semi-sleep trance with special drugs. The objective is to impair the reasoning functions of the individual, leaving the remembrance and speech intact, so-called promoting truthful disclosure. This twilight state can be provoked by some drugs. to choose the individuals, which is the foundation of the narco-analysis meetings.
The entire process of the narco-analysis test may be broken down into four distinct phases.
1) Prior to the test:
This stage is also known as a pre-test interview during which the subject is informed of all details of the test and is required to consent.7
2) Pre-narcotics phase:
At this phase, sodium pentothal or sodium amytal is used intravenously to induce. hypnosis in the subject. The drug is injected gradually into approximately five to ten per cent. The antecubital vein should not receive more than 1 gram or grain every minute. This marks the initiation of the interview process. Movement of impulses via the positive nerves and body organs. is suppressed, and the subject goes into a condition of semi-weakness.8
3) Semi-Narcotic Phase:
During this phase, a forensic expert or a psychiatrist is the one who interviews the subject and the subject’s speech. become distorted, and their speed is retarded. The typical behaviours are seen to appear. rested, muscles on his face slacking, looking excited, silly and giggling. Following the interview, the subject is also permitted to sleep, as well as receive a complete body examination. is given a caffeine beverage.9
4) Post-Test Interview:
This is the last stage, and it entails analysis of the memory of the subject and educating them about the findings of the interview. During this stage, people do not feel so anxious and instead feel more relaxed.10
Statement of Problem
Narco-analysis as a method of investigating criminal cases has created great legal, ethical, and constitutional issues in India. Even though it is occasionally employed by the investigating agencies to extract information out of the suspects, statements made under the influence of drugs cannot be taken seriously. In sensitive activities like sexual assault, the accuracy and fairness of evidence is vital and so the employment of narco-analysis can result in the infringement of the basic rights, especially the right against self-incrimination under the Constitution of India. In addition, Selvi v. Supreme Court. The admissibility and legality of it have been a subject of serious concern in State of Karnataka. Thus, the primary question that should be answered in the proposed research is whether narco-analysis can be regarded as a valid and constitutional type of evidence in sexual assault cases in the Indian criminal justice system.
NARCO-ANALYSIS IN INDIA
Since 1992, Narco-Analysis tests have been applied and India is one of the rare countries which has continued to use such technique to elicit confessions in crime cases11. Although not a commonly practiced and approved method in investigation in other countries, narco-analysis came to limelight during the Godhra incident in 200212. The method is used to relieve the investigators of using interrogation skills with the alternative being expedited methods of investigations.13 Many courts acknowledge the validity and legality of narco-analysis because they consider that an individual under the influence of Sodium Pentothal will not be able to lie because he or she does not have the thinking capacity and reasoning skills.14
Narco-analysis is not entirely true and some of the subjects can give totally false information. In this case, it is difficult to identify the right dosage of the medication that would be used by a particular person. In essence, narco-analysis is done to revive memories that are likely to be forgotten by suspects or accused persons15. The investigating officers employ this method to make suspects confess to their crimes when in the unconscious state because they might not be willing to do it when they are in their right frame of mind and full of sense.16
In The Godhra train burning case which is an event that happened on 27th February 2002, in which a train that had Hindu pilgrims was attacked close to the Godhra railway station in Gujarat, India. Due to the attack, a fire had broken out in a number of train carriages and this fire caused the deaths of 59 people most of whom are Hindu pilgrims17. The event caused rampant communal violence in Gujarat that took the lives of more than 1,000 including the majority who were Muslims and displaced thousands. During investigation of the Godhra train burning case, Narco analysis tests were done to retrieve information out of suspects or those who were aware of what had happened. These tests were taken into account as the outcomes of the investigation.
LEGAL FRAMEWORK UNDER THE BHARTIYA SAKSHYA ADHINIYAM, 2023 AND THE INDIAN CONSTITUTION
Section 2(e) of Bhartiya Sakshya Adhiniyam, 2023 gives the definition of evidence18.
“Evidence”- means and includes Anything that the court allows or necessitates to be said before it by witnesses, in correlation to factual items of enquiry; these pieces of evidence are known as oral evidence;
Oral Evidence: This refers to the saying of witnesses in court that verbally refers to the issue under investigation that is allowed or required by the court.
Documentary Evidence: This includes written or electronic data, i.e., contracts, reports or photographs, presented to the court as evidence.
Narco-analysis test can be considered as a type of traditional evidence because it includes both oral evidence in a subconscious state given by the accused and documentary evidence. This is so since the process usually entails the presence of a videographer who films the whole process, which can be provided during the court proceedings. The admissibility of the answers given by the Narco-Analysis Test is doubted, because answers should fulfil certain standards to be considered as evidence. A semi-conscious state might not be admissible as per the criminal jurisprudence unless the individual is considered fit of mind.
The Evidence Act sections 22, 23 to 23(2)19 provide limitations, especially when there is suspicion of coercion or intimidation. The court should reject confessions that were obtained under some form of compulsion, such as a hypnotic state. The controversy revolves around whether narco-analysis is scientifically investigative and can be used as forensic evidence.20
According to section 22 of The Indian Evidence Act 1872, it is stated that.
Confession caused by inducement, threat or promise, whether relevant on criminal proceedings- A confession obtained by the accused on a criminal proceeding would be considered irrelevant, and such confessions would not be admissible in a trial, should the court have the slightest doubt that such confessions were caused by inducement, threat or promise, or they were taken by any person in authority, or employed in reference to the charge against the accused person.21
CONSTITUTIONAL PROVISION AS FAR AS THE NARCO-ANALYSIS TEST IS CONCERNED
The Indian Constitution, in its Article 20(3)22 says: No person charged with any offence shall be forced into being a witness against himself.8 This means that people have the right to be silent and cannot be coerced to give evidence or testify against themselves. The right to privacy is not specifically enshrined in the Indian Constitution, but has been recognised to be an inseparable part of the right to life and personal liberty of the American Constitution, as stated in Article 21. In a landmark case of Justice K.S. Puttaswamy (Retd.) v. Union of India, the Supreme Court of India confirmed that the right to privacy was a fundamental right that was enshrined in the Constitution. In the wake of this right, narco-analysis tests, which are intrusive in nature and could invade the privacy of an individual, have been questioned.
Narco-analysis is the use of drugs to put individuals semi- into consciousness then they can divulge information or make statements that will most probably incriminate them. Nevertheless, during such a process, the person is not in complete control or cognizant of their abilities. Article 20(3) is violated since, under narco-analysis, people are pressured to give information or declare against themselves when they are in a helpless and suggestible condition by the use of drugs. This coercion violates the right of the individual against self-incrimination, which is a basic constitutional right.
Narco-analysis gives credence to the concept of voluntariness and fairness in criminal justice since the administration of drugs to control the psychological state of a person and induce information that might be incriminating is unethical. It literally compels people to testify against themselves which is contrary to the provision of Article 20(3) of the constitution. Thus, in Selvi vs. State of Karnataka (2010), the Supreme Court of India has ruled that the evidence collected by use of narco-analysis contravened Article 20(3) of the Constitution and was inadmissible in court.
It has also been noted by the court that there is a need to guard basic rights and that a person should not be forced to implicate oneself under duress or through force. In the case of State of Bombay v Kathi Kalu Oghad23 The case was discussed by the Indian Supreme , where Article 20(3) of the Constitution of India was applied to prevent the situation when the person is forced to be a witness against himself or herself. The case is especially applicable to the behavior of the legality of the narcoanalysis tests and their possible violation of the rights, liberties, and freedoms of an individual.
Article 20(3) provides that no individual who is accused of a crime must be forced to testify against himself. This provision is actually the protection of individuals against being coerced and forced to make some self-incriminating assertions. Nonetheless, in the present case, the court made it clear that Article 20(3) will only apply when the accused is forced to give a statement which is likely to be incriminating against him. This compulsion is duress and it is a range of pressure and it includes physical threats, physical threats beatings, or incarceration of the accused or his family members.
According to the court, in the event that a confession is given voluntarily, and without any inducement, threat, or promise, Article 20(3) is inapplicable. That is, when the accused makes a confession without the use of any type of coercion or compulsion, his or her confession becomes admissible evidence. This decision provides a significant legal doctrine in the interpretation of Article 20(3) and its applicability in the cases that require the confessions or statements of the accused. It highlights the importance of voluntariness in backing up the admissibility of evidence and protection against the use of coercive measures by the law enforcement officials.
When this principle is applied to the case scenario involving narcoanalysis tests, the voluntary and non-coercive status of an individual taking a test will imply that whatever he or she says or reveals during the test can be used as evidence. Nevertheless, in case the person is forcefully or pressurized into taking the test or saying some particular things during the test then such evidence would probably not be admissible under Article 20(3) since it would have infringed the basic right of the individual that against self-incrimination.
ADMISSIBILITY OF NARCO-ANALYSIS AS EVIDENCE IN COURT
The question is whether NARCO analysis is admissible in court. The use of narco-analysis as evidence in Indian courts has been a major issue of law and legal criticism. This problem was dealt with in a landmark case of Selvi vs. State of Karnataka by the Supreme Court of India.
In the Selvi vs. State of Karnataka24 Case it was discussed whether narco-analysis is admissibile in court
This case is formally referred to as Selvi and Others versus State of Karnataka, the Selvi vs State of Karnataka is an important Indian legal case that involved the right against self-incrimination, especially into the admissibility of evidence which has been gathered using the narcoanalysis tests. The petitioners in this instance questioned the constitutionality of conducting tests of narcoanalysis on people against their will. Narcoanalysis is a forensic method, used in which a drug is given to an individual to trance them into a hypnotic condition where the individual would then give out information that they might not be willing or capable of giving out when in a normal condition consciousness. The petitioners claimed that the right to subject people to such tests infringed their right against self-incrimination that is guaranteed in Article 20(3) of the Indian Constitution. The Supreme Court of India, in its decision dated May 2010, had acknowledged that the right against self-incrimination was one of the basic rights guaranteed to an individual under the Constitution. The court ruled that there was no justification of subjecting people to narcoanalysis tests without their consent. this was a basic right that was breached by consent. It highlighted the fact that it is wrong to force an individual to perform.
These sorts of tests was tantamount to compelling them to incriminate themselves, which is unacceptable under the Constitution. The Selvi case judgment has set some valuable legal principles on the matter of the defense of personal rights, especially, the right against self-incrimination in the context. of criminal techniques such as narcoanalysis. It reestablished the constitutional protection against forceful investigative methods as well as predetermined rules in admissibility of evidence collected with the help of such methods, it is possible to make sure that fundamental rights are maintained even in case of criminal investigations.
In this instance the Supreme Court decided that forcing people to undergo narco-analyzing, brain mapping, or polygraph tests against their own wishes is unconstitutional in the right against self-incrimination ensured in Article 20(3) of the Indian Constitution. The court held that evidence acquired due to such examinations is not admissible in the court as it infringes the rights of the individual and is considered coercive.
The court stated that the rights to fundamental protection have to be secured and offered equity in the process of criminal trials. It identified that narco-analysis entails administration. with drugs to put the suspects in a semi-conscious state, which might be unreliable or not. involuntary statements. Thus, the Selvi decision and the principles of the Indian dictate that the same. Evidence that has been acquired by narco-analysis is usually deemed inadmissible in constitution. court. Indian courts are apprehensive of the admission of evidence that was collected due to coercive means unwilled, and they are more concerned with upholding the rights and dignity of the accused. Although narco-analysis can be applied in investigative matters, such as the collection of leads or hints, the results thereof cannot be used in court. This ruling is an indication of the law courts adherence to the principles of the constitution, the fairness of the legal process, and protecting the personal rights against self-incrimination.
JUDICIAL INTERPRETATIONS
1. Mukesh & Anr v. State (NCT of Delhi)25
Facts of the Case
This case was created due to the brutal gang rape that happened in Delhi on 16 December 2012. A 23 year old physiotherapy intern got into a privately operated bus in South Delhi alongside her friend. The victim was attacked by six men inside the bus before she was violently gang-raped by the men. The assault resulted in serious internal injuries to the victim and she was eventually flung out of the bus moving along with her friend. Her injuries later claimed her. The case resulted in protests across the country that called to come up with tougher laws against sexual violence. The criminal was caught immediately after the crime according to the investigation of the police, eyewitnesses, and the forensic examination.
Judgment
The accused was convicted by the trial court of different provisions to the Indian Penal Code such as gang rape and murder and sentenced to the death penalty. The Delhi High Court upheld the decision which was later supported by the Supreme Court. According to the Supreme Court, the crime was within the category of the rarest of rare thus warranting the death sentence. In proving the guilt of the accused, the Court strongly depended on the dying statement of the victim, medical reports, DNA evidence among the other forensic evidence.
Function of Narco-Analysis of the Case.
In the process of investigation, some scientific methods were taken into consideration such as narco-analysis and other methods of interrogation to obtain more details of the accused. But the findings of such tests could not be considered a substantive evidence by the courts. Rather, the courts depended on credible facts like medical examination, forensic examinations, and eyewitness testimonies. In this case, it is shown that although narco-analysis can help investigative agencies to obtain leads, it cannot be used as a piece of evidence to convict a criminal in the court of law.
2. R.G. Kar Medical College doctors rape and murder case (2024)26.
Facts of the Case
In August 2024, a doctor who was a postgraduate trainee was discovered dead inside R.G. Kar Medical College and Hospital in Kolkata. The victim was found in a seminar room of the hospital, and, later investigations, showed that she was sexually assaulted and murdered. The event instigated the mass movement of protests all over the country especially among the medical practitioners who called on the court of justice and a more rugged security to the women who worked in hospitals. Because of the gravity of the accusations and issues related to the preliminary investigation, the case was handed over to the Central Bureau of Investigation (CBI).
Judicial Proceedings
To create fairness and transparency, stronger courts attended the investigation with a keen eye. The views of the courts were that a comprehensive scientific study should be conducted using sound forensic evidence. Law enforcers were ordered to gather and examine any evidence that could be used such as CCTV videos, forensic samples and eyewitness accounts.
Narco-Analysis Role in the Investigation.
In the flow of the investigation, the idea concerning the possible narco-analysis tests on some suspects was taken into consideration to gain additional information about the details of the crime. Nevertheless, based on the principles of the law established by the Supreme Court, in Selvi v. State of Karnataka, these tests cannot be performed without the voluntary consent of the individual and their results cannot be used as first hand evidence in the court. Thus, despite the fact that narco-analysis may be applied in the investigation process, it may only be used as an aid in the investigation but not as evidence in a criminal case.
THE CHALLENGES IN THE APPLICABILITY OF NARCO-ANALYSIS OF SEXUAL ASSAULTS.
1. Questionable Reliability
The challenge associated with narco-analysis, which is among the largest, is that the information that is collected during the test is not always reliable. When an individual is intoxicated by the use of drugs like sodium pentothal his or her head becomes in a semi conscious state in which imagination and reality are vulnerable to intertwine. Due to this, the subject might give wrong information or would make false memories unknowingly. Thus, the words spoken at the moment of narco-analysis cannot always be considered true and real.
2. Breach of the Basic Rights.
The other significant issue is that the narco-analysis can interfere with the constitutional rights of the accused. According to Constitution of India, no one accused of an offence can be made to testify against him or herself. When the narco-analysis is performed without due consent, it can force an individual to disclose something against his or her desire, which will be in contradiction with the protection against self-incrimination.
3. Ethical Concerns
There is the serious question of ethics in the use of drugs to gain information. Using chemicals that can alter the mental condition of a person can be termed as intrusion and inhumane. Such techniques in sexual assault cases, where the probe has to be undertaken with sensitivity and justice, can bring up ethical issues as to how suspects should be treated.
4. Risk of Abuse by Investigating Agencies.
Another misuse of narco-analysis is its use as a short-cut measure by the investigators when carrying out an investigation. Such tests can be used to secure confessions instead of using the correct evidence gathering methods by the investigators. This can undermine the quality of investigation and even wrongful charges may be made.
SUGGESTIONS
1. Strict Legal Regulation: Narco-analysis must be highly controlled through a law. It should be laid down clearly how and at what time such tests can be carried out without infringing the rights of individuals.
2. Voluntary Consent under Coercion: Narco-analysis is only to be done at the free will and knowledge of the individual being tested. This is to guard the constitutional rights of the accused and also eradicates undue discrimination during investigation.
3. Judicial Supervision: The use of narco-analysis in criminal investigation should be closely monitored by the courts. Such tests should not be done without judicial permission to avoid abuse of abuse by investigating agencies.
4. Focus on the Scientific Investigation: The agencies investigating the case ought to devote more attention to the gathering of sound forensic evidence rather than being over-reliant on narco-analysis. The right collection of evidence results in solid and more dependable criminal cases.
Alternatives to Narco-Analysis in Sexual Assault Investigations.
1. DNA Analysis: One of the best forensic evidences in sexual assault cases is DNA profiling. Biological evidence that might be created at the crime scene through the collection of blood, semen or hair is able to identify the culprit with a very high precision.
2. Medical and Forensic Examination: Instead, the prompt medical testing of the victim may leave vital evidences which include injuries, biological tests and medical records that can be used to prove the fact of the assault.
3. Fingerprint Analysis: Crime scene fingerprint will be able to establish the identity of people who were at the crime scene. This technique is very much adopted in the courts and is scientifically valid.
4. CCTV and Digital Evidence: The contemporary investigations are more dependent on digital evidence including CCTV videos, cell phone records, and GPS positioning. Such types of evidence may assist in recreating the chain of events and in finding suspects.
5. Techniques of psychological Interview: Rather than the drug based interrogation technique, scientific methods of investigation and psychological methods of interrogating suspects can be applied by trained investigators to get the suspects to give accurate information.
OUTCOME OF THE STUDY
This paper will analyze the application of narco-analysis in criminal proceedings mainly the cases involving sexual assault and discuss its legal, constitutional and practical consequences. Based on the studying of the legal acts, judicial rulings, and investigative procedures, it appears that narco-analysis is a disputable approach in the Indian criminal justice system.
The paper concludes that narco-analysis can be useful in particular situations enabling the investigating agencies to obtain leads or other information, but it remains very unreliable. People who make statements under the influence of drugs are not necessarily right as they are in semi-conscious state and they could confuse imagination with reality. As such, the data obtained by the use of such tests cannot be as always true and reliable.
The research also points out that application of narco-analysis is very constitutional. The right against self-incrimination as contained in the Constitution of India safeguards people against self-incrimination during the process of compelling people to testify against themselves. India Selvi v. the Supreme Court. State of Karnataka had made it clear that compelling an individual to undergo narco-analysis, polygraph analysis, or brain mapping is a contravention of the basic rights and hence unconstitutional. Consequently, evidence that is received by use of such tests cannot be subjected to substantive evidence in the court.
In addition, the research indicates that the reliability and scientifically acceptable evidence involved in sexual assault cases like DNA profiling, medical examination or forensic reports are mostly relied upon by courts. These types of evidence have been viewed as more precise and admissible in the court of law. The judicial interpretations that are mentioned in the paper also show that narco-analysis can be used as a supportive tool in investigation but cannot be applied as the basis of conviction.
On balance, the results of the research point to the fact that narco-analysis should not be applied in the investigation since it can never substitute real forensic evidence but should be applied with maximum caution to avoid violating the constitutional rights of people.
CONCLUSION
Narco-analysis is becoming a questionable method of investigation in the criminal justice system, especially in those cases of serious crimes like sexual assault. Although it was introduced with the motive of helping the investigators to reveal concealed facts and elicit information to the suspects, its accuracy and legality have been a subject of many discussions. The use of drugs to create a semi-conscious state provokes serious questions of the correctness of the information obtained and safety of individual rights.
The discussion of the constitutional clauses and the judicial rulings reveals that narco-analysis should be used with caution. The right against self-incrimination assured in the Constitution of India is used to be very instrumental in defending the rights of the accused. The Supreme Court in Selvi v. State of Karnataka made it clear that narco-analysis tests should not be conducted without the consent of the person since it is a breach of fundamental rights and cannot be justified by referring to the Constitution.
Cases like that of Mukesh and Anr v. State (NCT of Delhi) goes further to prove that the judiciary is more dependent on scientifically acceptable evidence like forensic examination, medical documentation and DNA profiling. In cases that involve sexual assault and where the just should be just and sensitive the importance of correct and admissible evidence within the law becomes even more crucial.
In spite of the fact that narco-analysis can be used to assist the investigating agencies in retrieving leads or helping to orient an investigation, it cannot be considered a substantive evidence in criminal cases. It is not a reliable way of establishing guilt because of the possibility of false memories, lack of scientific certainty, and the possibility of violation of constitutional rights.
Thus, the criminal justice system must pay more attention to developing scientific methods of investigation, which include the analysis of DNA, forensic examination, and collecting digital evidence. These procedures offer more valid and objective evidence besides considering the inherent rights enshrined by the Constitution. Finally, narco-analysis is a tool of investigation which should be cautiously used only, and the court is still to resort to credible and scientifically proved types of evidence in cases of sexual assaults.
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Footnotes
1. P. Ramanatha Aiyar, Advanced Law Lexicon, 3rd ed. (New Delhi: LexisNexis, 2005).
2. A.K. Singh, “Narco-Analysis and Its Evidentiary Value in Criminal Investigation,” Journal of Criminal Law and Criminology, Vol. 45, 2008.
3. N.V. Paranjape, Criminology and Penology, 17th ed. (Allahabad: Central Law Publications, 2019).
4. K.S. Narayan, “Scientific Techniques of Investigation and the Law,” Indian Journal of Criminology, Vol. 36, 2008.
5. S.K. Kapoor, Forensic Medicine and Toxicology (New Delhi: CBS Publishers, 2017).
6. Richard Saferstein, Criminalistics: An Introduction to Forensic Science, 11th ed. (Pearson Education, 2015).
7. B.R. Sharma, Forensic Science in Criminal Investigation and Trials 130–136 (5th ed. LexisNexis 2016).
8. N.V. Paranjape, Criminology and Penology 410–414 (17th ed. Central Law Publications 2019).
9. Richard Saferstein, Criminalistics: An Introduction to Forensic Science 486–492 (11th ed. Pearson 2015).
10. K.S. Narayan, Scientific Techniques of Investigation and Their Legal Implications, 36 Indian J. Criminology 45 (2008).
11. B.R. Sharma, Forensic Science in Criminal Investigation and Trials 134–138 (5th ed. LexisNexis 2016).
12. Godhra train burning, see also Manoj Mitta & H.S. Phoolka, When a Tree Shook Delhi (Roli Books 2007) (discussing communal violence and investigations).
13. N.V. Paranjape, Criminology and Penology 410–414 (17th ed. Central Law Publications 2019).
14. Selvi v. State of Karnataka, (2010) 7 S.C.C. 263.
15. Richard Saferstein, Criminalistics: An Introduction to Forensic Science 486–492 (11th ed. Pearson 2015).
16. K.I. Vibhute & P.S.A. Pillai, Criminal Law 102–105 (14th ed. LexisNexis 2019).
17. Paul R. Brass, The Production of Hindu-Muslim Violence in Contemporary India (University of Washington Press 2003).
18. Bharatiya Sakshya Adhiniyam, 2023, No. 47 of 2023, India Code (2023).
19. Ibid
20. ILE J. Evid. & Juris. Vol. 1, Issue 1 (2023).
21. Ibid
22. Constitution of India art. 20, cl. 3.
23. State of Bombay v. Kathi Kalu Oghad, A.I.R. 1961 S.C. 1808.
24. Selvi v. State of Karnataka, (2010) 7 S.C.C. 263.
25. Mukesh v. State (NCT of Delhi), (2017) 6 S.C.C. 1.
26. R.G. Kar Medical College Doctor Rape and Murder Case, Kolkata, India (2024).