Legal Analysis of Narcotics Test and Brain Mapping

Written by Aarushi Tomar

Fourth Year law student at Symbiosis Law School, Hyderabad



Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.


Introduction:


“Narcotics Analysis and the Brain Mapping Test” are incorporated under the “Deception Detection Tests” and they involve both legal as well as ethical implications.[1] “Narco-analysis” can also be termed as scientific evidence, where an individual under the effect of drug such as sodium amytal[2] divulges into impulses, illusions or delusions and puts forth information which he/she did not reveal in a conscious state of mind.


Brain Mapping”[3] in simple words “is a process that measures the changes in the electrical field of potentials produced by the sum of the neuronal activities in the brain of a particular person.”[4] This is done by means of electrodes that are placed on the surface of the skin covering the face and head of that individual. Under the said test the suspect or the accused is interviewed and an investigation is conducted upon him in order to reveal all the information that he might be concealing. Brain mapping in other words means “the activation of the brain for the associated memory is carried out by the presenting list of the words to the subjects and there are three types of words in the said list as used for brain mapping.”


This test is conducted in order to reveal the information that is related to the crime but would have been concealed as it is only known to the self. Such information can prove to be crucial for the purpose of investigation and could be used by various agencies to facilitate the process of criminal investigation. Various claims have been made in favour of these “scientific procedures” as they may help in fact finding and would directly facilitate the investigating agencies in the process of gathering the evidence.[5]


The National Human Rights Commission (NHRC) has however raised its concerns about human rights violations involved while conducting the Deception Detection Tests. To mitigate these concerns, NHRC established certain guidelines in the year 2000 for conducting the said tests in compliance with these guidelines.[6]

Narco-Analysis:


The word “narco-analysis” has been derived from the Greek word “narke” that means “anaesthesia” or “topor”.[7] In general terms, it is also called “the truth serum”. In recent times “narco-analysis and brain mapping” are used to corroborate the evidence with the details that the said accused or any other individual under the trial may provide with. One of the reasons that the “narco-analysis test” is called the truth serum is because the person under the influence of the drug loses all the inhibitions to manipulate the answers and only answers the questions posed to him truly. The drug or the serum used for conducting the “narco-analysis test” is Sodium Pentathol, the said test was first time used in the year 1935 in an investigation process.


Some major cases in which the “narco-analysis” test was used are “The Sashi Murder case, Malegoan Bomb Blast case, Mumbai Train Blast, Lashkar – E – Taiba Militanat case, Noida Serial Murder case i.e. Nithari Murder case”[8]


The term “Narco-analysis” was introduced by J. Stephen in the year 1936 and a simple meaning was given as trance like state in which the said individual may talk freely[9]. But, in the recent years with the adoption of “narco-analysis and brain mapping”, there has been an upsurge in the legal issue with reference to the said investigative techniques[10].


Brain Mapping:


Under the said test the suspect or the accused is interviewed and an investigation is conducted upon him in order to reveal all the information that he might be concealing. Brain mapping in other words means “the activation of the brain for the associated memory is carried out by the presenting list of the words to the subjects and there are three types of words in the said list as used for brain mapping.”[11] In the case of Santokben Sharmanbhai Jadeja v. State of Gujarat[12] it was observed that “the consent of the accused or the suspect who is subjected to the brain mapping test is required, cannot be accepted and the answer to such a question can be negative.”[13]


Interplay of Narco-Analysis and Brain Mapping with Article 20(3):


In order to establish a “crime-less” society, it is necessary to have an equity-based criminal justice delivery system. The traditional system or methods of conducting the criminal investigation may not bear the results as required therefore there is a need to depend on techniques like “narco-analyses and brain mapping” in order to get successful results.

As technological advancements are increasing, the dependence of humans has also been seen on the said methods, therefore the legal system may also adapt to the needs of the current society. With the introduction of techniques like “narco-analyses and brain mapping,” the criminal investigation has been simplified, making it easier to track the offenders.

Taking into consideration the requirements of the present era, the techniques can be rendered as to be necessary to help the investigating agencies.


But discussing the judgment as given in the case of Selvi v. State of Karnataka[14] the most important legal issue that can be inferred is that of the constitutionality of conducting “narco-analysis, brain mapping and the polygraph test” and whether conducting these tests violates the “right against self-incrimination” as provided under Article 20(3)[15] of the Indian Constitution. Under the said case the majority judgment was delivered by Chief Justice K.G. Balakrishnan and he gave huge emphasis on article 20(3) of the Constitution of India in reference to self-incrimination. Whereas the point of view of the minority has been completely ignored while delivering the judgment in the said case, which majorly was based upon the aspect of privacy of the individual undergoing the “narco-analysis and brain mapping”. This was done in order to avoid any escape to the culprits being interrogated with the help of the above-mentioned techniques. With the expanding field of criminology during the last few decades, various supplemental methods have been adopted in order to make the criminal investigation process more efficient. It was observed by the judges that “subjecting a person to the said techniques in an involuntary manner may violate the prescribed boundaries of privacy.”[16]


Any of the investigating techniques adopted in furtherance of conducting a criminal investigation shall be in admissibility to the provisions of the India Evidence Act of 1872. Therefore, when techniques such as “narco-analysis and brain mapping” are introduced in the criminal investigation system in order to obtain evidence, the first and foremost question that arises is that of violation of Article 20(3) of the Constitution of India.

The said law serves the purpose of providing the right of the individual being investigated or in the process of trial from self-incrimination. Article 20(3) specifically states that “Protection in respect of conviction for offences (3) No person accused of any offence shall be compelled to be a witness against himself”[17]. It can be comprehended from the above-made statement that:


i) The said right as provided under Article 20(3) of the Indian Constitution is only available to the accused. The provisions also restrict the person being investigated or put on trial from giving evidence against himself. In case a person is subjected to “narco-analysis or brain mapping” then the said provision of the Indian Constitution shall be attracted in order to protect the rights of the accused.


ii) It can also be considered to be a safeguard against the violation of rights that may occur. Whereas in the case of Kalawati and Anr. v. The State of Himachal Pradesh[18]The Hon’ble court held that “Article 20(3) will not be applied in case the confession is made by the accused without any form of inducement, promise or threat.”[19]


iii) The nature of the statement given by the accused shall be self-incriminating, then it shall attract the provision of Article 20(3). In the case of Rojo George v. Deputy Superintendent[20] it was observed that “the fruitfulness of conventional interrogation techniques in the present scenario where most of the crimes are committed with the help of sophisticated technologies is necessary to receive.”[21]


The recent judgment[22] delivered by the Supreme Court of India in 2010, with reference to the “involuntary administration of the Deception Detection Tests”. The questions were raised on the violation of fundamental rights as mentioned below:


i) “Right against self-incrimination that has been enumerated under article 20 (3) of the Indian Constitution, it states that no person accused of any offence shall be compelled to be a witness against himself”[23], and;


ii) “Article 21 i.e. Right to life and Personal liberty has also been judicially expanded to include the right against inhuman, cruel and degrading treatment.”[24]


In the view of the Apex Court of India, “the administration of such a drug may suppress the power of thinking of the suspect and the said person may not deliver reasonable answers. It includes interference in the nervous system of the individual, resulting in losing control over his mind. Therefore, certain questions are raised about violation of the fundamental rights such as right to life and personal liberty and right against self-incrimination.”[25] In the case of Ramchandra Ram Reddy v. State of Maharashtra[26] it was observed that “No person accused of any offence shall be compelled to be a witness against himself. Therefore it provides a privilege against testimonial compulsion”.


Further, in the landmark judgment of Nandini Satpathy v. P.L. Dani[27] The Supreme Court of India held that “No one can extract statements from the suspect or the accused, who has the right to silence during the course of investigation and interrogation.” But, in recent times there have been debates that narco-analysis tests provide great evidence and form a good evidentiary value. In the case of Dinesh Dalmia v. State[28]It was observed by the Madras High Court that “the scientific tests such as Brain Mapping and narco-analysis when conducted on the said accused it brings out truth and therefore, it would not amount to breaking his silence by force.”[29]


Therefore, when techniques such as “narco-analysis and brain mapping” are introduced in the criminal investigation system in order to obtain evidence, the first and foremost question that arises is that of violation of Article 20(3) of the Constitution of India. The said law serves the purpose of providing the right of protection to the individual being investigated or in the process of the trial from self-incrimination.


Conclusion:


“Narco-analysis and Brain mapping” has been a topic of debate for the legal fraternity. It is a scientific investigation under which the accused makes statements under the effect of the drugs. The Indian Evidence Act for most of the part has been silent with respect to the said tests. Most part of the current criminal system in India provides every individual with liberty as well as freedom and due to this system it provides people with a “safe passage to unavoidable criminal activities”.[30] The National Human Rights Commission also raised its concerns about human rights violations while conducting the Deception Detection Tests. NHRC also established certain guidelines in the year 2000 for conducting the said tests in compliance with these guidelines.[31] “Narco-analysis” can also be termed as scientific evidence, where an individual under the effect of drugs such as sodium amytal[32] divulges into impulses, illusions or delusions and puts forth information that he/she did not reveal in a conscious state of mind.


The Medical Council of India has also recently made an amendment to the code that it adheres to, stating that “The physician shall not aid or abet a torture or shall he be a party to either infliction of mental or physical trauma or concealment of torture inflicted by some other person or agency in clear violation of human rights under the code.”[33]Further, the World Medical Association has also revised the “Tokyo Declaration” on the same subject, therefore many new amendments can be seen to be made with reference to “narco-analysis and brain mapping” not only in India but internationally over the last few decades. Though a psychiatrist is advised not to perform “narco-analysis and brain mapping”, it cannot be denied that with the increase in the number of crimes and their brutality, it has become a need of the hour.


[1] P.R. Wolpe, D.D. Langleben and K.R. Foster, “Emerging Neurotechnologies for Lie-Detection: Promises and Perils”, Vol. 5, International Journal Psychophysical, 32, 39 – 49, (2005).

[2] T. Brown and E. Murthy, “Through a Scanner darkly: Functional Neuroimaging as Evidence of a Criminal Defendant’s Past Mental States”, Vol. 62, Stanford Law Review, 1119, 1119 – 1208 (2010). [3] Richard E, Harlan, “Standardized Brain Mapping”, Vol. 254, American Association for Advancement of Science, pg. 360, (1991). [4] C.D. Lefebvre, S. M. Smith and Y. Marchand, “Use of Event Related Brain Potentials to Asses Eyewitness Accuracy and Deception”, Vol. 73, International Journal of Psychophysical, 215, 218 – 225, (2009). [5] J. Murai and M. Taira “Disclosing concealed information on the basis of cortical activation”, Vol. 4, Stanford Law Review, 1375, 1380 – 1386, (2005). [6] NHRC Guidelines, 2000, pg. 12, National Human Rights Commission, (2010). [7] Snehal S. Shunde, “Narco-analysis: A Tool of Investigation”, Vol. 24, (International Journal of Multidiciplinary Research and Development, IJMRD), 234, 234 – 249. [8] Robert E. House, “The Use of Scopolamine in Criminology”, (American Journal of Political Science, AJPC), Vol. 2, 328 – 338, (1931). [9] B.R. Sharma, “Forensic Science in Criminal Investigation and Trials”, pp. 225, Universal Law Publishing Co. Pvt. Ltd. 5th Ed., (2015). [10] Kalawati and Anr. v. The State of Himachal Pradesh, AIR 131 1953; See also; State of Bombay v. Kathi Kalu Oghad, AIR 1961 1808. [11] E. Robert House, “The Use of Scopolamine in Criminology”, Vol. 2 (American Journal of Political Science, AJPS), 330, 328 – 338, (1931). [12] AIR 2009 LJ 68. [13] Santokben Sharmanbhai Jadeja v. State of Gujarat, AIR 2009 LJ 68. [14] AIR 2010 SC 1974. [15]The Constitution of India Art. 20(3): “Protection in respect of conviction for offences (3) No person accused of any offence shall be compelled to be a witness against himself.” [16] Ibid. [17] Constitution of India, Art. 20(3). [18] AIR 131 1953. [19] Kalawati and Anr. v. The State of Himachal Pradesh, AIR 131 1953. [20] 2006 2 KLT 197. [21] Rojo George v. Deputy Superintendent, 2006 2 KLT 197. [22] Smt. Selvi & Ors. v. State of Karnataka AIR 2010 SC 1974. [23] INDIA CONST. art 20(3). [24] INDIA CONST. art 21. [25] C.B. Hanscom, “Narco Interrogation”, Vol. 1, (Journal of Forensic Sciences, JFS), 38, 37 – 45, (1956). [26] AIR 2004, SC 207. [27] Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025. [28] 2006 Cr. L.J. 2401. [29] Dinesh Dalmia v. State, 2006 Cr. L.J. 2401. [30] E. Robert House, “The Use of Scopolamine in Criminology”, Vol. 2 (American Journal of Political Science, AJPS), 330, 328 – 338, (1931). [31] NHRC Guidelines, 2000, pg. 12, National Human Rights Commission, (2010). [32] T. Brown and E. Murthy, “Through a Scanner darkly: Functional Neuroimaging as Evidence of a Criminal Defendant’s Past Mental States”, Vol. 62, Stanford Law Review, 1119, 1119 – 1208 (2010). [33] Robert E. House, “The Use of Scopolamine in Criminology”, Vol. 2, (American Journal of Political Science, AJPC), 329, 328 – 338, 1931.

BIBLIOGRAPHY


Books:

  1. B.R. Sharma, “Forensic Science in Criminal Investigation and Trials”, pp. 225, Universal Law Publishing Co. Pvt. Ltd. 5th Ed., (2015).

  2. Constitution of India, 1950.

  3. C.B. Hanscom, “Narco Interrogation”, Vol. 1, (Journal of Forensic Sciences, JFS), 38, 37 – 45, (1956).

  4. C.D. Lefebvre, S. M. Smith and Y. Marchand, “Use of Event Related Brain Potentials to Assess Eyewitness Accuracy and Deception”, Vol. 73, International Journal of Psychophysical, 215, 218 – 225, (2009).

  5. E. Robert House, “The Use of Scopolamine in Criminology”, Vol. 2 (American Journal of Political Science, AJPS), 330, 328 – 338, (1931).

  6. NHRC Guidelines, 2000, pg. 12, National Human Rights Commission, (2010).

  7. J. Murai and M. Taira “Disclosing concealed information on the basis of cortical activation”, Vol. 4, Stanford Law Review, 1375, 1380 – 1386, (2005).

  8. P.R. Wolpe, D.D. Langleben and K.R. Foster, “Emerging Neurotechnologies for Lie-Detection: Promises and Perils”, Vol. 5, International Journal Psychophysical, 32, 39 – 49, (2005).

  9. Richard E, Harlan, “Standardized Brain Mapping”, Vol. 254, American Association for Advancement of Science, pg. 360, (1991).

  10. Robert E. House, “The Use of Scopolamine in Criminology”, Vol. 2, (American Journal of Political Science, AJPC), 329, 328 – 338, 1931.

  11. Snehal S. Shunde, “Narco-analysis: A Tool of Investigation”, Vol. 24, (International Journal of Multidisciplinary Research and Development, IJMRD), 234, 234 – 249.

  12. T. Brown and E. Murthy, “Through a Scanner darkly: Functional Neuroimaging as Evidence of a Criminal Defendant’s Past Mental States”, Vol. 62, Stanford Law Review, 1119, 1119 – 1208 (2010).

Cases:


  1. Dinesh Dalmia v. State, 2006 Cr. L.J. 2401.

  2. Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025.

  3. Kalawati and Anr. v. The State of Himachal Pradesh, AIR 131 1953.

  4. Rojo George v. Deputy Superintendent, 2006 2 KLT 197.

  5. Ramchandra Ram Reddy v. State of Maharashtra, AIR 2004, SC 207.

  6. State of Bombay v. Kathi Kalu Oghad, AIR 1961 1808.

  7. Santokben Sharmanbhai Jadeja v. State of Gujarat, AIR 2009 LJ 68.

  8. Selvi v. State of Karnataka AIR 2010 SC 1974




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