Two years ago, the Supreme Court allowed the use of such tests with a rider: consent of the subject is a must. But activists allege that the police are forcing accused persons to undergo the test to help their sloppy investigations and that the procedure is also not foolproof. Dilnaz Boga takes a look
Casually drop the word narco-analysis in a conversation with Arun Fereira and it’ll be hard to miss the undertone of anger in his voice. The political prisoner-turned-activist, who was jailed for over four years on charges of harbouring links with Naxals and walked out free only this January after the Gadchiroli sessions court acquitted him all charges, alleges that the procedure is deeply flawed.
In a landmark judgment in May 2010, the Supreme Court had termed the conduct of narco-analysis, brain mapping and polygraph tests on crime accused, suspects and witnesses without their consent as unconstitutional, saying it violates their ‘right to privacy’.
But activists allege that the state government has found ways to work around the letter of the law. Take the case of triple murder accused Vijay Palande and his aide, Dhananjay Shinde. The Mumbai crime branch recently got the go-ahead from the court to conduct narco-analysis tests on the duo to find out the identity of their alleged victims.
Narco-analysis involves the intravenous administration of sodium pentothal, a barbiturate that lowers a person’s inhibitions and induces him/her to talk freely.
Human rights campaigners say such a test flouts Article 21 of the Constitution since it is an invasion of the body and mind, which, thereby, translates to an invasion of privacy. They argue that the test intrudes on the mental processes of a subject, who has no control over the process of questioning. There is a risk that the unconscious mind may reveal personal information that is irrelevant to the investigation. “It is, therefore, imperative to establish standards of confidentiality and other safeguards, as privacy can be violated only by ‘procedure established by law’. No such safeguards exist in India and, hence, a narco-analysis test, if performed without consent, amounts to a violation of one’s privacy,” explains an activist.
Fereira knows what that’s like. He claims during his police custody, his interrogators kept forcing him to sign a letter of consent to conduct a narco-analysis test on him. “Although I declined to sign the letter, the prosecution produced this letter of consent with my forged signature in court. Both [co-accused] Ashok Reddy and I rejected the letter, but the magistrate permitted the tests to be conducted.”
At the forensic science laboratory (FSL) at Kalina, Fereira and Reddy had to undergo a psychological profiling as well as narco-analysis, brain mapping and polygraph tests. When they again demurred at this, the laboratory authorities warned them their refusal would be seen as a rejection of court order. “With no satisfactory results and having failed in this exercise of manufacturing proof of our criminal intentions, the police tried to get us to undergo another test. This time the Bangalore FSL was fixed as a venue since it had a streak of ‘success’ in aiding security agencies,” adds Fereira.
When the two again refused to sign the letter of consent for the test in 2007, Dr Malini, then assistant director of Bangalore FSL, said their refusal would be read as proof of their guilt and forced their hand in giving their consent.
Margin of error
Rights violations aside, the procedure also poses a life threat. C Samyukta, a professor of forensics, warns that an overdose of sodium pentothal could lead to coma or even death. “These techniques are used rampantly by the police. When investigations fall short, the authorities use these remedies as a crutch. The Aarushi Talwar murder case is a good example of this,” says Prof Samyukta who teaches at St Xavier’s College in the city.
Delhi-based terror expert Ajai Sahani says narco-analysis tests are not reliable. Referring to the Aarushi case, he explains that with repeated tests, the police had on their hands contradictory findings. He feels that the credibility of these tests depends on the skill of the analysts. “The interrogators are badly trained. Tests put subjects in a suggestive state. Analysts cannot lead the suspects. It’s basically a shortcut for incompetent investigative agencies to fish the truth out.”
Samyukta says a psychologist’s interpretations can be inaccurate since he/she relies on the experiential knowledge of the subject to make an assessment.
Dr Malini, who conducted the narco test on Fereira, was sacked in February 2009 for having forged her credentials.
Ex-city police commissioner MN Singh disagrees that narco tests often fall through. He says they have been useful in some high-profile cases even though they are not admissible in court as evidence. “The truth comes out voluntarily. True that they cannot be called evidence, but the results lead to a disclosure of certain facts which will need confirmation through investigation.”
Former cop YP Singh agrees. “It’s a tool for the innocent to absolve themselves.”
MN Singh admits that the procedure is not foolproof. “Remember, how Abdul Karim Telgi in the stamp paper scam named [Union minister] Sharad Pawar during a narco-analysis test? It was not true. Therefore, it is not totally reliable. Crooked criminals can master the tests.”
YP Singh defends the test. “The results are a little nebulous, but it’s a good alternative to the third degree [method of interrogation].”
Despite repeated attempts by DNA, high-ranking officials from the crime branch and the Mumbai branch of the Maharashtra anti-terrorism squad refused to comment on the issue.