The Uttar Pradesh government on October 2 issued a press note announcing that those associated with the Hathras incident—where a 19-year-old Dalit girl died a fortnight after it was alleged that she was gangraped by four men belonging to the upper caste, will be subjected to a narcoanalysis test.
This includes the accused and the family members of the victim in this case.
The 2010 Supreme Court judgement in Selvi v/s State of Karnataka is considered to be landmark not only for its explainer on what a narco test is but also the conditions under which it may be employed and administered on a subject.
Underworld dons like Arun Gawli and Abu Salem, counterfeiter Abdul Karim Telgi, starlet Preeti Jain—accused of setting up a hit job on Bollywood director Madhur Bhandarkar, accused in the Arushi-Hemraj murder case, Arun Ferreira—accused of being a Naxal and others have been put through the wringer by way of a narco test.
Dismissing narco tests, senior advocate Rebecca John told Boom, that such tests were "rampant in India in the early 2000's even after the world had abandoned it as junk science." "It has no scientific basis or foundational validity, besides being deeply intrusive and cruel. It is unconstitutional after the nine-judge constitutional bench verdict of the Supreme Court in the Puttaswamy case as it directly breaches an individual's right to privacy," she added.
What is a Narcoanalysis Test
The narcoanalysis is a technique that involves the intravenous administration of sodium pentothal—also known as a 'truth serum', a drug that lowers an individual's inhibitions inducing the person to speak freely. The drug causes a subject to enter into a hypnotic trance and become less inhibited. This state allows investigators to question the subject and get answers.
This scientific approach to investigations can be considered to be softer alternatives to the "regrettable and allegedly widespread use of 'third-degree methods' by investigators", the SC judgment noted.
In India, this technique is administered either inside forensic science laboratories or in the operation theatres of recognised hospitals. A psychiatrist and general physician usually perform pre-checks on whether the subject is mentally and physically fit to undergo the test, while an anesthesiologist supervises the administration of the drug.
However, the main test is conducted by a forensic psychologist who questions the subject. "Since the tests are meant to aid investigation efforts, the forensic psychologist needs to closely co-operate with the investigators in order to frame appropriate questions," Chief Justice of India CJ Balakrishnan observed in the Selvi verdict.
These tests are not 100% effective and there is a possibility that the subject will not reveal any relevant information. Highlighting the limitations of these tests, the SC judgment said that it is possible some persons "are able to retain their ability to deceive even in the hypnotic state", while "others can become extremely suggestible to questioning". Subjects could also "concoct fanciful stories in the course of the `hypnotic stage'," the SC said.
"Since the responses of different individuals are bound to vary, there is no uniform criteria for evaluating the efficacy of the `narcoanalysis' technique," the SC observed.
Narco Test an "unjustified intrusion into the mental privacy": SC
The SC on May 5, 2010 observed that compulsory administration of a narco test is an unjustified intrusion into the mental privacy of an individual while banning them. These tests violate one's constitutional 'right against self-incrimination', the top court said adding that "placing reliance on the results gathered from these techniques comes into conflict with the 'right to fair trial'".
The SC observed compulsory tests were an "unwarranted intrusion into personal liberty" and amounted to `cruel, inhuman or degrading treatment'.
These tests must be voluntary, provided certain safeguards are in place and the National Human Rights Commission (NHRC) 'Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused' are strictly adhered to.
The Guidelines are:
No Lie Detector Test should be administered without the consent of the accused. The option should be given to the accused as to whether he wishes to avail the test.
If the accused volunteers for the tests, he should be given access to a lawyer. The police and the lawyer should explain the physical, emotional and legal implication of such a test to him.
The consent should be recorded before a Judicial Magistrate.
During the hearing before the Magistrate, the accused should be duly represented by a lawyer.
At the hearing, the person should also be told in clear terms that the statement that is made shall not be a 'confessional' statement to the Magistrate but will have the status of a statement made to the police.
The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
The actual recording of the Lie Detector Test shall be done in an independent agency (such as a hospital) and conducted in the presence of a lawyer.
A full medical and factual narration of the manner of information received must be taken on record.