DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

CRIMINAL PROCEDURE CODE

PROJECT ON:
PROTECTION AGAINST SELF
INCRIMINATION: NARCO ANALYSIS TEST

Submitted to:-

Submitted by:-

Mr.Prem Kumar Gautam

Abhinav Singh

Assistant Professor (Law)

Roll no. -140101006

Dr. RMLNLU

B.A. LL.B(Hons.)- Vth Sem

Table of Contents
Introduction _______________________________________________3
The Narco Analysis Test ___________________________________ 4
Narco-analysis - The Technique ______________________________ 4
Narco Analysis in India ____________________________________ 5
Narco Analysis from Constitutional & Legal Stand Points __________5
Critical analysis of the judgement of Selvi case __________________ 13

Ratio of Selvi v. State of Karnataka __________________________15

Evidentiary value in the court_______________________________ 15
Criticism of Narcoanalysis test_______________________________16
A.R. Lakshmanans view on the judgement of Selvi case and involuntary
administration of Narcoanalysis and brain fingerprinting _________ 17
Right to self incrimination: Is it against public interest ____________18
Conclusion

______________________________________________19

Bibliography_____________________________________________ 21

INTRODUCTION
Across the globe, methods of law enforcement are witnessing colossal changes with progress
in science and technology. Methods of investigation are witnessing rapid shifts with the
amalgamation of scientific techniques and criminal procedure. As science has outpaced the
development of law or at least the laypersons understanding of it, there is unavoidable
complexity regarding what can be admitted as evidence in court. Narco analysis is one such
scientific development that has become an increasingly, perhaps alarmingly, common term in
India. The term Narco Analysis is derived from the Greek word nark (meaning
"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 poses several
questions at the intersection of law, medicine and ethics.
The legal questions relate to the involuntary administration of certain scientific
techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation
Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. This
issue has received considerable attention since it involves tensions between the desirability of
efficient investigation and the preservation of individual liberties. Objections have been
raised in respect of instances where individuals who are the accused, suspects or witnesses in
an investigation have been subjected to these tests without their consent which has been
defended by citing the importance of extracting information which could help the
investigating agencies to prevent criminal activities in the future as well as in circumstances
1

where it is difficult to gather evidence through ordinary means. In some of the impugned
judgments, reliance has been placed on certain provisions of the Code of Criminal Procedure,
1973 and the Indian Evidence Act, 1872 to refer back to the responsibilities placed on citizens
to fully co-operate with investigation agencies. It has also been urged that administering these
techniques does not cause any bodily harm and that the extracted information will be used
only for strengthening investigation efforts and will not be admitted as evidence during the
2

trial stage. The assertion is that improvements in fact-finding during the investigation stage
will consequently help to increase the rate of prosecution as well as the rate of acquittal. Yet
another line of reasoning is that these scientific techniques are a softer alternative to the
regrettable and allegedly widespread use of `third degree methods' by investigators. The
involuntary administration of the impugned techniques prompts questions about the
protective scope of the `right against self-incrimination' which finds place in Article 20(3) of
our Constitution.

Dr. Avtar Singh, Principles of the Law of Evidence 18th Edition, Central Law Agency, 2010

D. Banerjea, Criminal Justice and Supreme Court, Allied Publishers, Kolkata, 2005

3 |Page

The Narco Analysis Test:

A person is able to lie by using his imagination. In the Narco Analysis Test, the subject's
imagination is neutralised 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. Experts
inject the subject with Sodium Pentothal (C11H17N2NaO2S) or Sodium Amytal. The dose is
dependent on the person's sex, age, health and physical condition. A wrong dose can result in
a person going into a coma, or even death. The subject is not in a position to speak up on his
own but can answer specific but simple questions. The answers are believed to be
spontaneous as a semi-conscious person is unable to manipulate the answers. Narco analysis
is 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. Narco analysis first reached the
mainstream in 1922. When Robert house, a Texas obstetrician used the drug scopolamine on
two prisoners.

Narco-analysis - The Technique

Narcoanalysis, popularly known as Truth Serum Test, is Psychotherapy conducted while
the patient is in sleep like state induced by barbiturates or any other drug, especially as a
means of releasing repressed feelings, thoughts, or memories. Its use is restricted to
circumstances when there is a compelling, immediate need for patients response. Thiopental
Sodium is the drug which is normally used in the process of Narcoanalysis. This drug is
commonly known as Sodium Pentothanal which is a yellow crystal, soluble in water or
alcohol and is a sedative used as an anti depressant which if taken in high dosage, can lead to
Cardio-Vascular depression and can even result to lead the subject to the stage of Coma.
Narcoanalysis is conducted by injecting 3 grams of Sodium Pentothal which is dissolved in
3000 ml of distilled water and above solution is administered intravenously along with 10%
of Dextrose over a period of three hours with the help of Anaesthetist. Obviously, this test has
some invasion on the body. The rate of administration has to be so controlled that the suspect
is slowly drawn into the state of hypnotic trace. The ECG and blood pressure have to be
monitored. The revelations made during the hypnotic trance are recorded both in the video
and audio cassettes. The entire conduct of the procedure is video-graphed. The questions are
designed carefully and are repeated persistently in order to reduce the ambiguities during
drug interrogation. After the Narco-examination is over the suspect is made to relax for 2-3
hours. The report prepared by the experts is useful in the process of collecting the evidence.

http://www.forensic-evidence.com/site/Behv_Evid/brainfp_Iowa.html
4

http://www.inbdna.com/NARCOTest.htm?gclid=CNOOluvKqasCFUl76wodTzUx1Q

Narco Analysis in India

A few democratic countries, India most notably, still continue to use Narcoanalysis Narcoanalysis
is not openly permitted for investigative purposes in most developed and democratic countries. In
India, Narco-analysis was first used in 2002 in the Godhra carnage case. In our country, the
Narcoanalysis test is done by a team comprising of an anaesthesiologist, a psychiatrist, a clinical
forensic psychologist, an audio-videographer, and supporting nursing staff. 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.

The Bangalore Forensic Sciences Laboratory (BFSL) has been conducting lie
detection tests and Narco-analysis in India since 2000. A team comprising of an
anaesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer, and
supporting nursing staff conduct this test. 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.

The turning point for Narco-analysis in India came in 2002. In June 2002, three months after
the burning of a train bogie by a crowd at Godhra 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. Since then, this test has been conducted in many high profile
cases, such as those of the Nithari killers and the Mumbai train blasts, the multi crore fake
stamp paper case , etc. The narco-analysis test has found ready acceptance as a device to
extract the truth during police investigations. It was also reported that there are about 300
people in the Narco-analysis queue at the Forensic Science Laboratory (FSL) in Bangalore
alone.

Narco Analysis from Constitutional & Legal Stand Points

Such tests generally dont have legal validity as confessions made by a semi-conscious
person are not admissible in court. The court may, however, grant limited admissibility after
considering the circumstances under which the test was obtained. The petitioners in the case of
7

Selvi v. State of karnataka said courts could not direct the prosecution to hold Narco analysis,
brain mapping and lie detector tests against the will of the accused as it would be violative of
Article 20 (3) of the Constitution. The main provision regarding crime investigation and trail in
the Indian Constitution is Art. 20(3). It deals with the privilege
5

http://www.hindu.com/fline/fl2409/index.htm

http://www.inbdna.com/NARCO-Test.htm?gclid=CNOOluvKqasCFUl76wodTzUx1Q
7

Smt. Selvi & Ors Vs State of Karnataka. Smt. Selvi & Ors Vs State of Karnataka Judgment on 5 May
2010. (Criminal Appeal No. 1267 of 2004). Available from: http://supremecourtofindia.nic.in,
accessed on october 25, 2011.

5|Page

against self- incrimination. The privilege against `self incrimination is a fundamental canon of
Common law criminal jurisprudence. Art. 20(3) which embody this privilege read,
No person accused of any offence shall be compelled to be a witness against himself.
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) it was held that to attract of
Constitution.
The application of Narcoanalysis test involves the fundamental question
pertaining to judicial matters and also to Human Rights. The legal position of applying this
technique as an investigative aid raises genuine issues like encroachment of an individual s
rights, liberties and freedom.
The privilege against self-incrimination thus enables the maintenance of human
privacy and observance of civilized standards in the enforcement of criminal justice. 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 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 (CrPC) and the Indian Constitution.
In the CrPC, the legislature has guarded a citizens 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. Arguments have been made that narco analysis constitutes mental torture and thus
violates the right to life under Article 21 as it deals with right to privacy.

It is well established that the Right to Silence has been granted to the accused by
9
virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani ; no one can
forcibly extract statements from the accused, who has the right to keep silent during the
course of interrogation (investigation). By the administration of these tests, forcible intrusion
into ones mind is being restored to, thereby nullifying the validity and legitimacy of the
Right to Silence. She claimed that she had a right of silence by virtue of Article 20(3) of the
Constitution and Section 161 (2) of Cr. P.C. The Apex Court upheld her pleas.

In the landmark judgement of Selvi v. State of Karnataka Supreme court once

again clarifies its stand on the involuntary administration of self incriminating tests like
Narco- analysis and Brain Fingerprinting Selvi case if the final authority on this subject, so

8
9

http://legalsutra.org/1382/right-against-self-incrimination/ Last accessed on 2-11-2011

AIR 1978 SC 1025

6|Page

for the clear understanding of the law on this topic one has to study the case of Selvi V. State
of Karnataka thoroughly the facts and the decision of case is as follows:

Facts of the Case

Selvi's daughter Kavita had married Shivakumar of a different caste against the wishes of her
family. Shivakumar was brutally killed in 2004, and Selvi and two others became the
suspects. Since the prosecution's case depended entirely on circumstantial evidence, it sought
the court's permission to conduct Polygraph and brain-mapping tests on the three persons.
The court granted permission and the tests were conducted. When the results of the Polygraph
test indicated signs of deception, the prosecution sought the court's permission to perform
narcoanalysis on the three persons. The magistrate directed the three to undergo
narcoanalysis. All of them challenged this decision in the Karnataka High Court, but failed to
get relief. They then went in appeal to the Supreme Court.
The Supreme Court, in a remarkable shift from its minimalist approach, held that compulsory
brain-mapping and polygraph tests and narcoanalysis were in violation of Articles 20(3) and
21 of the Constitution. The key sentence is in Paragraph 220 of the judgment: In
constitutional adjudication, our concerns are not confined to the facts at hand but extend
to the implications of our decision for the whole population as well as future generations.

Relevant Issues

2. Whether the involuntary administration of the impugned techniques violates the `right
against self-incrimination' enumerated in Article 20(3) of the Constitution?
3. Whether the investigative use of the impugned techniques creates a likelihood of
incrimination for the subject?
4. Whether the results derived from the impugned techniques amount to `testimonial
compulsion' thereby attracting the bar of Article 20(3)?
1. Whether the involuntary administration of the impugned techniques violates the

right against self- incrimination enumerated in Article 20(3) of the Constitution?

Investigators could seek reliance on the impugned tests to extract information from a person
who is suspected or accused of having committed a crime. Alternatively these tests could be
conducted on witnesses to aid investigative efforts. As mentioned earlier, this could serve
several objectives, namely those of gathering clues which could lead to the discovery of
relevant evidence, to assess the credibility of previous testimony or even to ascertain the
mental state of an individual. With these uses in mind, we have to decide whether the
compulsory administration of these tests violates the `right against self-incrimination' which
finds place in Article 20(3) of the Constitution of India. Along with the `rule against doublejeopardy' and the `rule against retrospective criminalisation' enumerated in Article 20, it is

7|Page

one of the fundamental protections that controls interactions between individuals and the
criminal justice system.
The interrelationship between the `right against self- incrimination' and the `right to fair trial'
has been recognised in most jurisdictions as well as international human rights instruments.
For example, the U.S. Constitution incorporates the `privilege against self-incrimination'
in the text of its Fifth Amendment. In the Indian context, Article 20(3) should be construed
with due regard for the inter-relationship between rights, since this approach was recognised
10

in Maneka Gandhi v. Union of India case,. Hence, we must examine the `right against selfincrimination' in respect of its relationship with the multiple dimensions of `personal liberty'
under Article 21, which include guarantees such as the `right to fair trial' and `substantive
due process'. It must also be emphasized that Articles20 and 21 have a non-derogable
status within Part III of our Constitution because the Constitution (Forty-Fourth
amendment) Act, 1978 mandated that the right to move any court for the enforcement of
these rights cannot be suspended even during the operation of a proclamation of
emergency. In this regard, Article 359(1)of the Constitution of India is important.
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) 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. The Supreme

10

(1978) 1 SCC 248

8|Page

11

Court had observed in State of Bombay v. Kathi Kalu Oghad that 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? Also the danger that some accused persons at least, may be induced to furnish
evidence against themselves which is totally false - out of sheer despair and an anxiety to
avoid an unpleasant present. Of all these dangers the Constitution makers were clearly well
aware and it was to avoid them that Article 20(3) was put in the Constitution.
2. Whether the investigative use of the impugned techniques creates a likelihood of
incrimination for the subject?
It was argued that the compulsory administration of the impugned tests will only be sought to
boost investigation efforts and that the test results by themselves will not be admissible as
evidence. The next prong of this position is that if the test results enable the investigators to
discover independent materials that are relevant to the case, such subsequently discovered
materials should be admissible during trial. In order to evaluate this position, following subissues come forward:
2.1. Firstly, we should clarify the scope of the `right against self-incrimination' - i.e.
whether it should be construed as a broad protection that extends to the
investigation stage or should it be viewed as a narrower right confined to the trial
stage?
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 in M.P.
12

Sharma v. Satish Chandra , that the guarantee in Article 20(3) is against testimonial
compulsion. It is suggested that this is confined to the oral evidence of a person standing
his trial for an offence when called to the witness-stand. We can see no reason to confine the
content of the constitutional guarantee to this barely literal import. So to limit it would be to
rob the guarantee of its substantial purpose and to miss the substance for the sound as stated
in certain American decisions....
The phrase used in Article 20(3) is to be a witness and not to appear as a witness i.e. 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.
B.P. Sinha, C.J. in State of Bombay v. Kathi Kalu Oghad and Ors., affirmed the same
position that:
11

[1962] 3 SCR 10

12

[1954] SCR 1077

9|Page

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, of course, 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. Dani,
that- Any giving of evidence, any furnishing of information, if likely to have an
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
Article20(3) .
2.2. Secondly, we must examine the ambit of the words `accused of any offence' in
Article 20(3) - i.e. whether the protection is available only to persons who are
formally accused in criminal cases, or does it extend to include suspects and
witnesses as well as those who apprehend incrimination in cases other than the one
being investigated?
The decision in Nandini Satpathy's case, also touched on the question of who is an `accused'
for the purpose of invoking Article 20(3). This question had been left open in M.P. Sharma's
case. Subsequently, it was addressed in Kathi Kalu Oghad.
To bring the statement in question within the prohibition of Article 20(3), the person accused
must have stood in the character of an accused person at the time he made the statement. It is
not enough that he should become an accused, anytime after the statement has been made.
While there is a requirement of formal accusation for a person to invoke Article 20(3) it must be
noted that the protection contemplated by Section 161(2), CrPC is wider. Section 161(2) read
with 161(1) protects `any person supposed to be acquainted with the facts and circumstances of
the case' in the course of examination by the police. Therefore the `right against selfincrimination' protects persons who have been formally accused as well as those who are
examined as suspects and witnesses in criminal cases. 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), CrPC]. Furthermore, it is narrower than the protection given to the accused during the
trial stage [under Section 313(3) and Proviso

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(b) to Section 315(1), CrPC]. The legislative intent is to preserve the fact- finding function of
a criminal trial.
2.3. Thirdly, we must evaluate the evidentiary value of independent materials that are
subsequently discovered with the help of the test results. In light of S. 27 of the
Indian Evidence Act, 1872 we need to examine the compatibility between this section
and Article 20(3). Of special concern are situations when persons could be
compelled to reveal information which leads to the discovery of independent
materials and clarification as to what constitutes `incrimination' for the purpose of
invoking Article 20(3) is to be sought.

We can now examine the various circumstances that could `expose a person to criminal
charges'. The scenario under consideration is one where a person in custody is compelled to
reveal information which aids the investigation efforts. The information so revealed can
prove to be incriminatory if strengthen the case of prosecution, derivative use, transactional
use, extracting materials or information, which are then compared with materials that are
already in the possession of the investigators.
The scheme created by the Code of Criminal Procedure and the Indian Evidence Act also
mandates that confessions made before police officers are ordinarily not admissible as
evidence and it is only the statements made in the presence of a judicial magistrate which can
be given weightage. The doctrine of excluding the `fruits of a poisonous tree' has been
incorporated in Sections 24, 25 and 26 of the Indian Evidence Act, 1872 and Sections 162,
163 and 164 of the CrPC which lay down procedural safeguards in respect of statements
made by persons during the course of investigation.
However, Section 27 of the Evidence Act incorporates the `theory of confirmation by
subsequent facts' - i.e. statements made in custody are admissible to the extent that they can
be proved by the subsequent discovery of facts. However, in circumstances where it is shown
that a person was indeed compelled to make statements while in custody, relying on such
testimony as well as its derivative use will offend Article 20(3). The relationship between
Section 27 of the Evidence Act and Article 20(3) of the Constitution was clarified in case of
Kathi Kalu Oghad that:
The information given by an accused person to a police officer leading to the discovery of a fact
which may or may not prove incriminatory has been made admissible in evidence by that Section.
It can arise only when it is of an incriminatory character so far as the giver of the information is
concerned. If the self-incriminatory information has been given by an accused person without any
threat, that will be admissible in evidence and that will not be hit by the provisions of Clause (3)
of Article 20 of the Constitution for the reason that there has been no compulsion. It must,
therefore, be held that the provisions of Section 27 of the Evidence

Act are not within the prohibition aforesaid, unless compulsion has been used in
obtaining the information.
11 | P a g e

It was observed that at the time of administering the impugned tests, it cannot be ascertained
whether the resulting revelations or inferences will prove to be inculpatory or exculpatory in
due course. Taking this reasoning forward, it was held that the compulsory administration of
the impugned tests should be permissible since the same does not necessarily lead to the
extraction of inculpatory evidence which was not considered by the Court.
The exclusionary rule in evidence law mandates that if inculpatory evidence has been
gathered through improper methods (involving coercion, threat or inducement among others)
then the same should be excluded from the trial, while there is no such prohibition on the
consideration of exculpatory evidence. However, this distinction between the treatment of
inculpatory and exculpatory evidence is made retrospectively at the trial stage and it cannot
be extended back to the stage of investigation. If we were to permit the admission of
involuntary statement on the ground that at the time of asking a question it is not known
whether the answer will be inculpatory or exculpatory, the `right against self-incrimination'
will be rendered meaningless. 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
eventually prove to be inculpatory or exculpatory. Furthermore, it is also likely that the
information or materials collected at an earlier stage of investigation can prove to be
inculpatory in due course.
3. Whether the results derived from the impugned techniques amount to `testimonial
compulsion' thereby attracting the bar of Article 20(3)?
The next issue is whether the results gathered from the impugned tests amount to `testimonial
compulsion', thereby attracting the prohibition of Article 20(3). Apart from the apparent
distinction between evidence of a testimonial and physical nature, some forms of testimonial
acts lie outside the scope of Article 20(3) for eg. specimen signatures and handwriting
samples. The relevant consideration for extending the protection of Article 20(3) is whether
the materials are likely to lead to incrimination by themselves or `furnish a link in the chain
of evidence' which could lead to the same result. Hence, reliance on the contents of
compelled testimony comes within the prohibition of Article 20(3) but its use for the purpose
of identification or corroboration with facts already known to the investigators is not barred.
It is quite evident that the narcoanalysis technique involves a testimonial act. A subject is
encouraged to speak in a drug-induced state, and there is no reason why such an act should be
treated any differently from verbal answers during an ordinary interrogation and not knowing
whether the results will eventually prove to be inculpatory or exculpatory does not matter.
However, an unresolved question is whether the results obtained through polygraph
examination and the BEAP test are of a testimonial nature. In both these tests, inferences
are drawn from the physiological responses of the subject and no direct reliance is placed on
verbal responses.

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The question of
Article 20(3) was

what constitutes
addressed in M.P.

`testimonial compulsion' for the purpose

Sharma's case was that the phrase used

of
in

Article 20(3) is `to be a witness'. A person can `be a witness' not merely by giving oral
evidence but also by producing documents or making intelligible gestures as in the case of a
dumb witness [see Section 119 of the Evidence Act or the like]. `To be a witness' is nothing
more than `to furnish evidence', and such evidence can be furnished through the lips or by
production of a thing or of a document or in other modes. 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.
The Court emphasized that a situation where a testimonial response is used for comparison
with facts already known to investigators is inherently different from a situation where a
testimonial response helps the investigators to subsequently discover fresh facts or materials
that could be relevant to the ongoing investigation which is ultimately hit by Article 20(3).
On the point of medical examination in the CrPC, The contentious provision is the
Explanation to Sections 53, 53A and 54 of the CrPC (amended in 2005) in which the phrase
`modern and scientific techniques including DNA profiling and such other tests' should be
liberally construed to include the impugned techniques. It was argued that even though the
narcoanalysis technique, polygraph examination and the BEAP test have not been expressly
enumerated, they could be read in by examining the legislative intent. Emphasis was placed
on the phrase `and such other tests' to argue that the Parliament had chosen an approach
where the list of `modern and scientific techniques' contemplated was illustrative and not
exhaustive but the Court held by the help of the maxim of ejusdem generis and concluded
that techniques mentioned therein are with respect to collection of physical evidence and
do not include techniques that will lead to collection of testimonial evidence. In doing so, it
took note of the fact that the Legislature was aware of the fact that these techniques existed in
2005, when the Explanation was added to Section 53. The Court holds that the impugned
tests not being enumerated, indicates that the Legislature did not intend them to be read into
medical examination under the Cr.P.C. In the process, the Court recognises the fact that
constitutional values need to be infused into all branches of law. It thus sends the message,
which is often lost, that criminal procedure is an extension of the Fundamental Rights
guaranteed under Part III of the Constitution.

Critical analysis of the judgement of Selvi case

Is the Supreme Court correct in disallowing the Polygraph and the BEAP Test
and does DNA testing under S.53 of the Indian Code of Criminal Procedure
Violate the Right against Self-Incrimination?

All the three tests have been disallowed by the Court in the case but the Polygraph and the
BEAP test are not involving any verbal or oral evidence are on the same lines as that of DNA
13 | P a g e

test under Section 53 of CrPC and hence should be allowed otherwise it will cause very much
13
difficulty to investigative authority.
Article 20(3) of the Constitution of India reads- No person accused of any offence shall be
compelled to be a witness against himself. However, Section 53 of the Cr.P.C allows an
investigative agency to examine an arrested person for the collection of evidence and facts.
The Indian Supreme Court in Selvi v. State of Karnataka held that since evidence from
narco-analysis, brain-mapping and polygraph tests were compelled and not voluntary, the
tests violated ones right against self-incrimination. With this judgement as the background,
should investigative agencies be allowed to use evidence from DNA obtained from the
accused and not the crime scene? If yes, why shouldnt investigative agencies be allowed to
use the results of tests such as Narco-analysis, brain-mapping and polygraph tests?
The Bombay High Court recently in an important verdict in the case of Ramchandra Reddy
14

and Ors. v. State of Maharashtra , the bench upheld the legality of the use of P300 or
brain finger-printing, lie-detector test and the use of truth serum or Narco analysis. It
also upheld the admissibility of evidence procured under the effect of truth serum. The
judgment also held that these tests involve minimal bodily harm. Narco analysis and
Polygraph test was conducted on Moninder Singh Pandher and his servant Surendra 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.

15

RIGHT TO LIFE AND PERSONAL LIBERTY AND 'SUBSTANTIVE DUE PROCESS

I disagree with the reasoning of the Supreme Court relating to substantive due process . The
Supreme Court held that Article 21 protection is applicable to the instant case, as the right to
privacy shall govern the process of investigation. In Article 21, the framers of the Indian
Constitution substituted 'procedure established by law' in place of 'due process of law' to
prevent the judiciary from becoming a harbinger of standards of individual liberties that may
potentially threaten welfare measures of the state, as had been the American experience.
However, subsequent to a trend begotten by Maneka Gandhi v. Union of India, the judicial
perception and ambit of Article 21 have been fundamentally altered. If a contemporary
exposition was to be proposed, it would be accurate to suggest that the restrictive guarantee
of Article 21 has effectively morphed into a source of unenumerated rights, to be unearthed at
the will of the judiciary. The right to privacy is one such unenumerated right which the Courts
have found to be manifested in Article 21.
13

Narco-Analysis and the Shifting Paradigms of Article 20(3): A Comment on Selvi v. State of
Karnataka Available at: http://works.bepress.com/anjaneydas/3

14

2004 All MR (Cri) 1704

15

The Concept of Narcoanalysis in View of Constitutional Law and Human Rights by Sonakshi Verma

14 | P a g e

In the instant case, the Court again relied on the 'substantive due process' guarantee of Article
21 to give effect to its finding. However, while the notions of this doctrine have been firmly
rooted in judicial thought, it still is an abrogation of the original Constitutional intention.
Thus, reliance on 'substantive due process' is fundamentally misplaced and the doctrine
should not become a refuge for the free exercise of judicial thought. The judiciary is
bound by the principles of Part III as well, and should not derogate to redefine Part III in a
manner that suits its own interpretation. Hence, while the intention of the Court was bona
fide, and the constitutional challenge to the process of Narco-analysis was correctly accepted
by the Court, it is not a correct an application of due process of law as a justification for the
Court's findings.

16

Ratio of Selvi v. State of Karnataka

The Supreme Court in Selvi held the following:
1. The compulsory administration of the narco analysis, brain mapping and polygraph tests
violates Article 20(3) of the Constitution of India and the right to privacy guaranteed by
Article 21.
2. Forcing an individual to undergo any of the three tests violates the standard of substantive
due process which is required for restraining personal liberty. Thus it extended the ban to
civil cases as well, by reading Art. 20(3) into Art. 21.
3. The impugned tests cannot be conducted using Sections 53, 53A and 54 of the Code of
Criminal Procedure.
4. Placing reliance on the tests violates the right to fair trial guaranteed by Article 21 of the
Constitution
5. Compelling public interest cannot justify the dilution of constitutional rights.
6. The tests can be administered if a person volunteers for the same, but the test results cannot
be admitted as evidence. However, any information or material discovered, in accordance
with Section 27 of the Indian Evidence Act can be admitted as evidence. The guidelines given
by the NHRC in relation to polygraph tests (2000) need to be strictly adhered to in
conducting the tests.

Evidentiary value in the court

The scope of the Narco analysis test collectively falls under the Section 45 of the Indian
Evidence Act 1872, and Section 53 of Code of Criminal Procedure 1973 together. Section 45
of The Evidence Act allows the court to take experts opinion or the opinion of persons
specially skilled in such foreign law, or of science, or art, or as to identity of handwriting or
finger impressions.

17

16

Supreme Court judgment on polygraph, narco-analysis & brain-mapping: A boon or a bane

17

The Concept of Narcoanalysis in View of Constitutional Law and Human Rights by Sonakshi Verma

15 | P a g e

Similarly Section 53 of the Cr.P.C. makes provision for the medical examination
of the arrested person by a registered medical practitioner at the request of a police officer.
While Narcoanalysis yielded an immense amount of information, it also triggered off many
question as several critics shared profound sense of skepticism over the administration of
serum on the witness to extract truth. Narcoanalysis is considered as a tool or aid in collecting
and supporting evidence. However doubts are raised whether it amounted to testimonial
compulsion in judiciary and violation of human right, individual liberty and freedom.

18

Lawyers are divided on whether the results of Narco analysis and P300 tests are
admissible as evidence in courts, as they claim that confessions made by a semiconscious
person is not admissible in court. A Narco analysis test report has some validity but is not
totally admissible in court, which considers the circumstances under which it was obtained
and assessed its admissibility i.e. whether test is conducted with the consent of the accused or
accused is forced to undergo such test.
Results of such tests can be used to get admissible evidence, can be collaborated
with other evidence or to support other evidence. But if the result of this test is not admitted in a
court, it cannot be used to support any other evidence obtained the course of routine investigation.

Criticism of Narcoanalysis testNarcoanalysis has been criticized on the ground that it is not 100% accurate. It
has been found hat certain subjects made totally false statements. It is often unsuccessful in
eliciting truth as such it should not been used to compare the statement already given to the
police before use of drug. It has been found that many persons have given false information
even after administration of drug. It is not much help in case of malingers or evasive,
19

untruthful person. It is very difficult to suggest a correct dose of drug for a particular person.
The dose of drug will differ according to will power, mental attitude and physique of the
subject. For its success a competent and skilled interviewer is required who is trained in
putting recent and successful questions.

20

Narcoanalysis test is a restoration of memory which the suspect had forgotten.

This 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 persistely. Narcoanalysis is not recommended as an aid to
criminal investigation. In medical uses like in treatment of psychiatric disorder the
narcoanalysis may be useful. Unless the test is conducted with the consent of the suspect it
21

should not be used in criminal investigation .

18

R.V.Kelkar, Criminal Procedure (5th Edition, Eastern Book Company, 2011)

19

The Hindu 21st Jan,2006

20

21

http://www.inbdna.com/NARCO-Test.htm?gclid=CNOOluvKqasCFUl76wodTzUx1Q
2005 Cri Lj 150, Journal section

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A.R. Lakshmanans view on the judgement of Selvi case and involuntary

22
administration of Narcoanalysis and brain fingerprinting
Former chairman of law commission Mr. A.R. Lakshmanan is of the view that judgement of
supreme court in Selvi v. state of Karnataka is a landmark judgement but there is some points
has been left by the supreme court such as :(i) The court did not go into the details regarding at least six aspects concerning the
ground realities. First, why was the age-old and abandoned Narco-test suddenly
revived in India only during the last 10 years, and that too by psychologists
appointed as lie detector technicians in Forensic Science Laboratories?
(ii) Why were non-medical psychologists permitted to perform Narco-analysis, which is
an invasive medical procedure that is conducted by medical psychiatrists all over the
world when it was in vogue or practised until being abandoned?
(iii)

Is there any evidence to show that the old Narco-analysis technique has been
improved to any degree by these psychologists through authoritative research, peer
review and publications?

(iv)Is there a scientific test to assess accurately whether an individual is awake or in

trance (hypnotic stage) after the drug is administered?
(v) Why is Narco-analysis offered as a confirmatory test in a three-in-one package'
of polygraph, brain fingerprinting and Narco-analysis tests, conducted in that
order, by one and the same psychologist?
(vi)When Narco-analysis tests are carried out on the same subject five or six times until
the desired answer is obtained, how can they be considered scientific?
The court has discussed Narco-analysis techniques in 26 paragraphs, and all the citations
indicate that the Narco-analysis expert is a psychiatrist (medical personnel) and not the nonmedical psychologist as is the case in India.
The Supreme Court has used its long arm to silence the misinterpretation of the legal experts,
claiming that the provision for medical examination' under the Code of Criminal Procedure
1973 includes the Narco-analysis technique, the polygraph examination and the BEAP test.
Unlike expert witnesses who testify about matters outside the court's expertise, such as
fingerprint analysis or ballistics, a Narco analysis and Polygraph expert can provide only an
opinion. Since one cannot reliably measure human emotions, the idea of valid detection of
truth or falsehood by measuring the respiratory rate, blood volume, pulse rate and galvanic
skin response is pretence. Since psychologists cannot ascertain what emotions one has,
polygraph professionals are not able to do that either.

22

Welcome verdict but questionable rider by A.R. Lakshmanan published in the hindu Friday, Jul 09, 2010
acessed from http://www.hindu.com/2010/07/09/stories/2010070951561000.htm

17 | P a g e

Mr. Lakshmanan said that, It is a timely move to curb the sudden revival and marketing by
some Indian pseudo-scientists of the almost hundred years old Narco and polygraph tests
combined with the more recently introduced brain-mapping test as a three-in-one package.'
But the rider that the ruling would not apply to those voluntarily agreeing to undergo them is
based more on the constitutional position than on the scientific perception and the ground
reality. He also argued that even from the constitutional angle, how can a wrong become a
right when it is done with consent? The arguments brought forth by the Supreme Court
against the forcible use of Narco-analysis, polygraph and brain fingerprinting should hold
good when these are used with consent.
In the opinion of the former Supreme Court Judge, Justice K.T. Thomas, Narco-analysis
is a crude technique in criminal investigation. He said the trial of a criminal case should not
be one meant to convict the accused, but one meant to ensure that an innocent person was not
convicted.

Right to self incrimination: Is it against public interest:

The other view regarding the legal validity of Narco analysis test is that it is used as an aid for
collecting evidence and helps in investigation and thus does not amount to testimonial
compulsion. Thus it does not violate the constitutional provision regarding protection against
self-incrimination. Supporters of Narcoanalysis test are of view that Narcoanalysis is
particularly useful when there is a requirement to elicit required information for preventing
any offences by terrorist. However its application must be assessed objectively so that it can
be replaced by existing conventional method of interrogation which brought shame, ignominy
and disrepute to police leading to erosion of credibility of criminal justice system.
Narcoanalysis can evolve as viable
effective alternate to barbaric third degree methods. Care however must be taken that
this procedure is not misused
or abused by investigating officer and should be
13

correlated with corroborative. In case of Dinesh Dalmia v State of Madras it was

held by Madras Court that scientific test of accused by conducting polygaphy, Narcoananlysis
and brain mapping test on accused to bring out truth would not amount to breaking his silence
by force. The irony of the modern law jurisprudence is that there are many learned counsels
engaged to defend the rights of the accused while there is none to defend the public cause and
interest. In Krushi and Charminar Bank Scam, evidence thousands of depositors lost their life
time earnings and savings meant for education the kith and kin, to perform marriage of the
children and pensioner benefits vanished overnight shattering their dreams and pushing them
to the brink of bankruptcy and suicides. Yet when the M.D of Krushi Bank was nabbed, he
refused to undergo Narco analysis procedure.

23

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The Concept of Narcoanalysis in View of Constitutional Law and Human Rights by Sonakshi Verma

18 | P a g e

In such instances, if the right against self incrimination is upheld against the public
interest and it would weaken the evidence and thereby denial of justice to the public.
Murderers, money launderers, terrorist are allowed to walk away Scott free exploiting the
loopholes in the legal system. Ironically in all these issues we apply criminal procedures only
to protect the individual freedom of the accused while rights and lives of many people have
24

been sacrificed.
The present criminal justice system is obsessed with individual liberty and freedom and in
this context a safe passage forgone and criminals due to weakness in the criminals due to
weakness in the criminal justice system leading to dilution of evidence. Since the validity of
the test and admissibility of Narcoanalysis is upheld taking into consideration the
circumstances under which it was obtained , there is a little possibility of miscarriage of
justice when administered as per procedure prescribed and observing the due safety
precautions, the apprehension on the part of counsels of accused and critics is unwarranted.
The provision of administering Narcoanalysis test when made compulsory for
the accused /witness in grave offences will pave the way for improving the quality of criminal
justice through strengthening of evidence system. This move will bring about a qualitive
change in the criminal justice and the erstwhile death chambers of police stations are replaced
by operation theatres administering truth serum on the criminals and thereby offering a ray of
hope that justice at last will prevail.

Conclusion
Law is a living process, which changes according to the changes in society, science, ethics
and so on. Our legal system should be also be in tune with the developments and advances
that take place in science to counter the increasing number of criminal activities in the
present day scenario where the techniques used by the criminals for commission of crime are
very sophisticated and modern.
The conventional method of questioning may not be able to lead to any result at all.
Moreover police has been accused of undue delay in investigation and producing doctored
documents, the modern methods like Narco analysis and Brain fingerprinting will act as a
boon to the investigation procedure. Although it should not be made a matter of practice and
should be used only in demanding situations. These methods of investigation are not well
established as like other scientific tests like DNA test or Blood Sample test but these tests
could be prove very helpful in quick disposal of the case. Court have disallowed to give any
evidentiary value to these tests in the selvi case, and held them as unconstitutional if
conducted involuntarily on the accused. But court should allow these tests for supporting

http://www.legalserviceindia.com/article/l466-Privilege-Against-Self---24
Incrimination.html
http://www.legalserviceindia.com/article/l466-Privilege-Against-Self---Incrimination.html

other evidences which are presented in particular case, also at the time of consideration of

admissibility of these tests court should consider the right of speedy trail of the victim.
The courts should decide the admissibility of these tests after the careful examination of the
Right against Self Incrimination of accused and Right to get Justice and Right of speedy
trail of victim according to the facts of the each case.

BIBLIOGRAPHY
Books Referred

th

Dr. Avtar Singh, Principles of the Law of Evidence (18 Edition, Central Law
Agency, 2010).
Mahendra P. Singh V.N.Shuklas Constitution of India, Eastern Book Company,
th
11 edition 2010.
th

R.V.Kelkar, Criminal Procedure (5 Edition, Eastern Book Company, 2011).

Awasthi, S. K, The Criminal Procedure Code Approach to Trial Court, 1 Ed., CTJ
Publications, Pune, 2007

Banerjea, D, Criminal Justice and Supreme Court, Allied Publishers, Kolkata, 2005
Sarkar, S. C, Sarkars Commentary on The Code of Criminal Procedure, 1973,
Dwivedi Law Agency, Allahabad, 2006

Shivanna, A. G, Rights and privileges of accused, Wordsworth Publications,

Bangalore, 2008

st

Articles Referred

Narco-Analysis and the Shifting Paradigms of Article 20(3): A Comment on Selvi v.

State of Karnataka Available at: http://works.bepress.com/anjaneydas/3

Supreme Court judgment on polygraph, narco-analysis & brain-mapping: A boon or a

bane

The Concept of Narcoanalysis in View of Constitutional Law and Human Rights by

Sonakshi Verma

Welcome verdict but questionable rider by A.R. Lakshmanan published in The

Hindu
Friday,
Jul
09,
2010
accessed
from
http://www.hindu.com/2010/07/09/stories/2010070951561000.htm

Website Referred

http://www.legalserviceindia.com/article/l375-Article-20-%283%29-OfConstitution- of-India-And-Narco-Analysis.html

http://jurisonline.in/2009/02/article-20-3-of-constitution-of-india-andnarcoanalysis- %E2%80%93-blending-the-much-awaited/
http://www.legalserviceindia.com/article/l466-Privilege-Against-Self---Incrimination.html
http://legalsutra.org/1382/right-against-self-incrimination/
http://legalperspectives.blogspot.com/2011/01/limitations-to-law-against-self.html

http://ipc498a.wordpress.com/2007/11/06/nandini-satpathy-vs-pl-dani-right-

against- self-incrimination/
www.indiankanoon.org/doc/338008/
http://www.forensic-evidence.com/site/Behv_Evid/brainfp_Iowa.html
http://www.inbdna.com/NARCOTest.htm?gclid=CNOOluvKqasCFUl76wodTzUx1Q
hindu.com/fline/fl2711/stories/20100604271103700.htm
works.bepress.com/cgi/viewcontent.cgi?article=1000&context=vivek
breakingthecodeofcriminalprocedure.blogspot.com/.../excerpts-fro