RIGHT TO PRIVACY AND NARCO- ANALYSIS TEST

Dr Jay S. Bhongale

Assistant Professor, Bharati Vidyapeeth (Deemed-To-Be-University), New Law College, Pune

Abstract:

The privacy is very personal because it is the power of an individual. The Constitutional of India guaranteed under Article 19 of the Constitution, freedom of speech and expression.   Another article which is article 21 of the Constitution talks about right to life and personal liberty encompass the right to privacy of the individuals. The established process is that the limitation shall put on the ground which is specified under article 19(2) and not otherwise and second is that to curtail the fundamental right, legislation shall be passed by parliament of India. In the name of governance and public order state is violating the very right of privacy without providing any justification. So it means if state want to put the limitation on right to privacy state has to pass the law. Data and information of the individuals becoming public property and state is doing nothing. The present article speak about the constitutional safeguard and state liability towards right to privacy, it will demonstrate the real condition of governing policy and insufficiency and inadequacy to promote the individual fundamental rights. The present article also speaks about narco-analysis test, its effect and legality in confrontation with Right to privacy.

Keywords: Narco-analysis, Encroachment, Mental Torture, Testimony, Reliability

1.  Introduction

Law and technology are connected to each other fashionable manner because when technology fashioned law tend to have fashionable. The development of scientific technology annoyed the territorial and cultural boundaries existed in primitive society. Due to advancement in the field of technology law also has to surpass resilience power according to the need of the society. One thing is very important in the perspectives of legal jurisprudence that while using the technology shall not overlook the essential procedure connected with law. The technology shall not violate the basic rights of the individual which may coupled with Constitution or may not be coupled with Constitution. Narco-analysis test may be useful for the investigating agency and government machinery but other hand it should not violate the basic right of the individual.

2.  Narco- Analysis: Background of Study

The term Narco-analysis means (“anesthesia” or “torpor”). From the time immemorial man has tried to find out the cause of internal secrets. Narco technique is not new to the world; early period to the modernization man was used to the diagnostic and psychotherapeutic technique.

The drug sodium pentothal is better known as truth Cyril, is injected into a person. This allows a person to speak freely without any inhibition. Before the test, a psychiatrist and general physician will check whether the person taking the Narco test is mentally and physical fit. The drug is then given inside of foreign-sick lab or in the operation Theatre of a recognized hospital. An anesthesiologist will supervise the injection and then a forensic psychologist conduct the test by asking questions. The test is only meant to aid investigative efforts and is not always hundred percent effective. It is the combination of Sodium Penthatol and Sodium Amytal cautiously dosage¹administered to the receiver and synchronized on the basis of health condition of the receiver. It is totally administered under the supervision of health experts including psychologist and physiologist. Narco test is the process applied by the investigation agency,

¹ Justice K.S. Puttaswamy and Ors. v. Respondent: Union of India (UOI) and Ors., MANU, 2017.

certain amount of drug may be given to the suspected person or witness interrogation through prepared questions in the trance stage.²

The right to privacy, right to privacy is the integral part of right of liberty.³ If there will be conflict of interest between rights to privacy and state interest then definitely preference will be given to the state interest, right to privacy is not unlimited according to the Supreme Court of India.⁴ Because there is no cognizant control over the individual by him, it won’t be treated as evidence irrespective that there was informed consent available and given by the subject. Any material or any output revealed through the Narco test then court will accept the evidence as defined by section 27 of the Evidence Act.⁵ The reason to not accepting the evidence relating to confession made under police custody is that police agency may contaminate the procedure and may force to the subject. So Court will not admit this kind of evidence unless it is not cross verified.⁶

The criminal justice system is dependent upon the support of the people especially person call for investigation has to provide equal cooperation for investigation of the case.⁷ It is not unconditional right it is the social responsibility to provide proper information to the investigating officer.⁸

3.  Freedoms and Reasonable Restrictions

1. A law cannot have said to be a reasonable law unless it will satisfy the balance between Article 19(1), (2) and Article 19(6).
2. The fundamental right having primacy status than restrictions⁹, it means Article 19(1) shall be predominated as comparison to Article 19(2)& (6) but we should not ignore that rights are not absolute and allowed to make reasonable restriction. It means fundamental rights are fundamental and limitation shall not obliterate very essence of the balance assigned to Article 19 as a whole.
3. For the protection of the general welfare the individual right may be suspended with the help of reasonable restriction.
4. Right under article 19 (1) is the asset of the individual and limitation from (2) to (6) is the asset of the welfare of society.
5. Test of reasonableness in relation with restriction under Article 19 (2) means application separately on account of consideration of impugned statute and no general standard would applicable as to all cases.
6. Court will decide reasonability on the basis of nature of right violated, purpose of restriction, degree and exigency of remedy search for, discrepancy of imposition and time condition.
7. It is not on the view of judges but on the basis of whether reasonable man will consider it as a reasonable or unreasonable the test of reasonability shall decide. Reasonability shall not be judged on the basis on the ground of restriction but on the ground of fundamental rights.

Whether law which is imposing restriction is reasonable or not decided on the basis of durability of a law, providing reasonable safeguards for rights like right to appeal or review.

² “IJFMT July-Dec 2011.pdf,.”

³ Gobind v. State of Madhya Prade, SCC, 1975.

⁴ Ibid.

⁵ Ajay Kr. Barnwal and Dr.S.N Ambedkar, “Narco-analysis Test: An analysis of various Judgements of Indian Judiciary,” 19 IOSR Journal of Humanities and Social Science 52–7 (2014).

⁶ Ibid.

⁷ Dharmapal v. State, MANU, 2003.

⁸ Ibid.

⁹ State is allowing to make restriction on the freedom available under Article 19 (1), on the following grounds; these restriction given under Art.19 (2) to (6); including Article 19 (g) condition applied

• The most important principle is that restriction on freedoms can be imposed only through by law or authority of law. it means that if state want to put reasonable restriction on the freedoms then legislation shall be passed by the legislature or under any existing law which limiting the freedom on account of social welfare.
• Executive action or authority cannot impose restriction unless there is law behind to support and these restriction shall passed the reasonability test.
• Restriction can be imposed only on the subjects listed in the Article 19 (2) and (6), not otherwise and if the reasonability challenged in the court of law then burden of proves will be in the shoulder of imposer has to prove it.
• Arbitrarily imposing restriction will no e reasonable restriction, there must be direct and contiguous relationship between restriction and the object of imposing the restriction.
• The principle of proportionality would be applicable between fundamental right and restriction court will decide on the basis of law imposing restrictions are proportionate to the situation and it should be last chance to protect the welfare of society.
• While deciding in the court of law reasonability based on procedural and substantive manner, it means law imposing restriction substantively sound under article 19(2) &(6) and procedural reasonability means restriction imposed under proper procedure law followed.
• The object of restriction is very important; it means for personal gain or repugnance reasonability will not be cleared it is only for general profit of welfare reasonability test can be cleared.

4.   Right To Privacy Vs. Criminal Procedure

It is usual interpretation that no right is absolute and right to privacy is restricted according to the clause of Article 19 (2). So any law made by the parliament or existing may put the restriction on implementing the right available to the individuals under article 19(1), in the name of public order, security of the state, contempt of Court etc. Article 20(3) said that person is immune to provides witness and evidence against himself, no one can force to him. These are the fundamental right available against state so the responsibility of the state has incurs the liability to provide safeguards to enjoy this rights available under Constitution.

Also right to life is available under Article 21 of the Constitution, which is also limited by ‘Procedure established by law’. Now the question is how far the provision of Criminal procedure Code is applicable in exercising fundamental rights of the Constitution. First we will discuss about criminal procedure about to give the compulsion for giving testimony. Now the interpretation may be extended in way of giving testimony including giving support to the Narco-analysis test.

Under section 2(h) defined that ‘Investigation’ means all the proceedings is conducted by police officer or any other authorized by Magistrate for the collection of evidence. Section 53 of the Criminal Procedure Code, including explanation¹⁰ added in 2005 shall read together to understand. Now so the investigating agency is allow under this section to conduct investigation, this is the narrow interpretation and so irrespective consent of the accused Narco-analysis test may be conducted with the virtue of this provision. So interpretation of ‘such other tests’ include Narco-analysis test. Such other test including (DNA test, blood sample test, and Narco-analysis test) find legal sanction through the adding explanation under section 53-A to Criminal procedure Code. Again in section 161 of Criminal Procedure Code, ‘the

¹⁰ R.V. KELKAR, “[Explanation.—In this section and in sections 53A and 54,— (a) ‘examination’ shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;” Criminal Procedure Code (Eastern Book Company).

police office is authorized for investigation and person is bound by the law to provide all the answer for the questions asked by him and it is bound by the law, excluding questions which tend to make him offender by law.¹¹ As general rule know to the legal fraternity that evidence collected through confession would not be considered as the evidence under section of the Evidence Act, 1872. Specific provision is available under section 25 of the same Act. Even though it is compulsory for person to give all oral answer it is not necessary that Narco-analysis test will be the compulsory, the crime which is registered under Indian Penal code shall be exempted for Narco-analysis test excluding terrorist activity.

5.   Conditions to Conduct Test

Informed consent: This is the prerequisite for conducting narco-analysis test otherwise it would be considered as compelled testimony under Article 20(3) of the Constitution. Informed consent means the person upon this test is conducted is aware about the mental and physical consequence and he is voluntarily agreed. He had the knowledge of the technicalities of the process, the influence of the drugs legal, physical, psychological consequences and voluntarily delivers the consent. Informed consent is the awareness of the accused or the patient procedure undergoing upon him. In Narco-test patient is aware about the consequences which may physical, legal and emotional. It is already explained to the patient or accused before undergoing treatment, in this test the doctor, advocate and physiologists presence is also important.¹²Accused during investigation cannot be subjected to Narco Analysis without his consent; it would be violative of Article 20(3) and 21 of the Constitution.¹³

Dr. D.Y. Chandrachud, J. in Justice K.S. Puttaswamy and others v. Union of India¹⁴, A citizen has a right to safeguard the privacy of his home, his family, marriage, procreation, motherhood, child-bearing and education among other matters. Publication of any matter by anyone without individual consent whether it is appropriate or non-appropriate matter.¹⁵

In Nandini Satpathy case¹⁶, Court declares that the accused not be interrogated without counsel present. The evidence supported before the court of law on the basis of the admission or confession even tough accepted but it the classic example most of the time incriminating evidence. Particularly when corroborated, as where the police have confirmed the accused disclosure of the hiding place of implements or fruits of the crime, In Nandini Satpathy case Supreme Court laid down the understanding of ‘compelled testimony’. For compelled testimony not include physical force, threat or violence but psychological pressure, intimidatory methods, coercion and influence technique.¹⁷ So this kind of technique amount to violation of Article 20(3) of the Constitution. The Supreme Court of India laid down following principles relating Article 20(3),

1. If an accused person desire to have his lawyer by his side when the police interrogate him, this facility shall not be denied to him.
   1. The Police must invariably warn-and record the fact that writing any document amount to written acknowledgement

¹¹ “The Code Of Criminal Procedure, 1973,”available at: https://indiankanoon.org/doc/445276/ (last visited July 22, 2021).

¹² Ananthi S. Bharadwaj and Sumithra Suresh, “Narco Analysis and Protecting the Rights of the Accused,” 4 NALSAR Student Law Review 121–33 (2008).

¹³ Selvi v. State of Karnataka, AIR, 2010, MCMLXXIV.

¹⁴ In K.S. Puttaswamy and Others v. Union of India, MANU, 2017.

¹⁵ Ibid.

¹⁶ Nandini Satpathy v. P.L. Dani and Ors., MANU, 1978.

¹⁷ Ibid.266

• After an examination of the accused, where lawyer is not available, the police officer must take to the Magistrate, doctor or other willing person where he can unburdened himself beyond the view of the police.

6. Judicial Opinions for Right To Privacy

The judgment in Smt. Selvi v. State of Karnataka forceful or without consent of the subject if test was conducted then that would amount to violation of right to privacy of the individuals.

Any kind of force is not accepted in any legal format of the country, contaminated consent will be the denial and negation the justice. Justice is not only to be done it is necessary that actually all the principle of natural justice should have attached with the concept of justice. Justice K. Balkrishna said, the narco- analysis test would amount to violation of substantive due process. This is the most important recent decision on the right to privacy relation with narco-analysis test.

The guidelines given by NHRC in 2000 must be followed. It is also said by the court that consent given by the subject must be recorded before judicial magistrate. Statement registered under the authority of judicial magistrate would not be considered as confession but any further information received or material discovered from such can be admitted as a evidence before court.

In Justice K.S. Puttaswamy case ¹⁸, Supreme Court said, it is the government duty to upgrade its identity records in tune with changing requirements of the citizens.¹⁹ From reasons purely personal to reasons flowing from life events such as marriage, death or migration, the authorities are responsive to the changing needs of citizens.²⁰ Supreme Court held again, “it is bounden duty of all state instrumentalities to play the role of enablers in the exercise of rights by the citizens, including correcting their records owing to purely personal choices of the citizens. For instance, “gender” is an evolving concept which could warrant changes in identity documents. In such cases, too much insistence on disclosure of reasons could be invasive to privacy.”

In a democracy, free expression of one’s name in the manner he prefers is a facet of individual right. In Our Country, to have a name and to express the same in the manner he wishes, is certainly a part of right to freedom of speech and expression under Article 19 (1) (a) as well as a part of the right to liberty under Article 21 of the Constitution of India. State or its instrumentalities cannot stand in the way of use of any name preferred by an individual or for any change of name into one of his choice except to the extent prescribed under Article 19(2) or by a law which is just, fair and reasonable. Subject to the limited grounds of control and regulation of fraudulent or criminal activities or other valid causes, a bonafide claim for change of name in the records maintained by the Authorities ought to be allowed without hesitation.²¹

Recently in 2021Jigya yadav case²² Supreme Court held, “The natural identity of an individual should be treated to be absolutely essential to his being. What nature gives is natural. That is called nature within. Thus, that part of the personality of a person has to be respected and not despised or looked down upon. The said inherent nature and the associated natural impulses in that regard are to be accepted. Non- acceptance of it by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual. Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. It can be viewed from another angle. An individual in exercise

¹⁸ Justice K.S. Puttaswamy and Ors. v. Respondent: Union of India (UOI) and Ors., MANU, 2017.

¹⁹ Ibid.

²⁰ Ibid.

²¹ Rayaan Chawla v. University of Delhi and Ors., , DE/1983 MANU/ (2020).

²² Jigya Yadav (Minor) through Gurdian/Father Hari Singh v. C.B.S.E. and Ors., MANU, 2021.

of his choice may feel that he/she should be left alone but no one, and we mean, no one, should impose solitude on him/her.”²³ Mental privacy of the individual is the essential part of life, Individual shall be treated discretely, his violation of own is detrimental to the humanity, it is the requirement of being as human and if there violation of individuality then that as will be treated as violation of very existence of man. Right to privacy is very personal to the individual even if god exist, shall not interfere into the individual jurisdiction. So without consent of individual any administration of drug will be treated as involuntary administration. This kind of narco or lie detector tests is an “intrusion” into a person’s “mental privacy”

The consequences of such tests on “individuals from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advice” can be devastating.²⁴

It may involve future abuse, harassment and surveillance, even leakage of the video material to the Press for a “trial by media.” Such tests are an affront to human dignity and liberty, and have long-lasting effects.²⁵

“An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy.”²⁶ It has been held that when an order encroaches fundamental rights without due process of law it is still-born and liable to be ignored.²⁷

In Hathrus Case ²⁸ where Petitioner filed case in Allahabad High Court, petition no Crl. M.P. No. 105463 in 2020 Uttar Pradesh government take the decision to the conduct Narco analysis test of victim’s family members to find out the truth. Girl was raped and died, Uttar Pradesh government to conduct Narco test was violation of the rule of law of the land.

7.     Necessary Guidelines

1. The decision to decide whether Narco-analysis test shall be conducted or not decided by the High Court, now-a-days to conduct the Narco analysis the permission of Trial Court is being taken because of it is the individuals fundamental right question, then High Court is the appropriate forum to decide. The informed consent of the person shall be cross verified by the High Court and if there will be absence of informed consent then High Court will reject the application and at the time of hearing the lawyer of the accused person shall be present and opportunity to disclaim shall be provided.
2. Narco-analysis shall be conducted in ‘rarest of the rare’ case, only because investigation agency not able to solve the case then be treating as last resort in investigation will be totally wrong in respective of the individual physical and mental health aspect. Even though this technique should not be treated as replacement for investigation method.
3. Narco analysis test shall be permitted only once in all investigation process and that also in only limited crime including terrorist activity or war against the state.

²³ Ibid.

²⁴ Krishnadas Rajagopal, “Involuntary narco tests an intrusion into a person’s mental privacy: Supreme Court” The Hindu (New Delhi, 4 October 2020), section National.

²⁵ “PressReader.com – Your favorite newspapers and magazines.,”available at: https://www.pressreader.com/india/the-hindu/20201005/281998969913917 (last visited July 14, 2021).

²⁶ Right To Privacy – Civilsdaily, , https://www.civilsdaily.com/story/right-to-privacy/ (last visited Jul 14, 2021).

²⁷ Jeeshan and Ors. v. State of U.P. and Ors., MANU, 2021.

²⁸ Satyama Dubey and Ors. v. Union of India, MANU, 2020.

• In vision of Supreme Court Judgement²⁹ in 2010 where Supreme Court has give order to strict adherence to the guidelines of National Human rights Commission in 2000, where including obtaining consent of subject it is mandatory to record video and it should be before judicial magistrate., consent form of the subject, signature of the subject lawyer, physical, explanation of legal and emotional consequences by lawyer and police and medical practitioner all going to be followed but after 20 years it has to passed new required guidelines because everything changed with the advent of time. Because in the name of these tests injustice may be done to the subjects if there is not ultimate discovery of truth in police case by the investigation officer.
• Compulsory administration of Narco- analysis violates the “right against self-incrimination” and the test results cannot be admitted in evidence if they have been obtained through the use of compulsion but here is necessity that prosecution shall not be allowed to present the evidence has been collected from the information given by the subjects under Narco-analysis test. If any reference made by the prosecution during the trial then that may have to be considered as violation of Article 20(3).
• Guidelines given by the National Human Right Commission in 2000, and its adherence approved by the Supreme Court in 2010 does not satisfy the purpose, there is need for special legislation of at least Criminal Procedure Code amended Section 53 where ‘such other test’ is not conclusive, absence of informed consent procedure, so details and explanation shall be inserted in the section itself. There is necessity to add guidelines of Human Right Commission given in 2000, at least be incorporated under section 53 of CRPC.
•   In View of the Supreme Court decision the test results which conducted under section 161(2)³⁰ of the Code of Criminal Procedure, 1973 cannot be evidence taken through force. So section 161 shall add one more clause (4), any examination like lie detection, Narco- test or any DDT (deception detector techniques) shall not force by police officer without the permission of High Court.

8. Conclusion

Supreme Court of India time to time has passed through various judgements to concerning right to privacy as fundamental right, even though this fundamental rights are not absolute, still there is established process has to follow if state want to curtail or put the limitation on it, so it is necessary that law is very necessary to curtail the right to privacy but five times the bill was introduced to the parliament of India and that bill was not cleared by parliament.

As far as India is concerned, there is cynicism in the crime investigation methods applies by the police officers. In relation with right to privacy, Narco-test is not complement as it applied and conducted against any individuals without any legislation. Legal axiom is that whenever state wants to curtail the fundamental right or state wants to make restriction on fundamental rights the proper legislation shall enacted but in relation with right to privacy no legislation passed till now by the government of India. The evidence collected through unfair means, if accepted in judicial proceedings raise disrespect towards

²⁹ Selvi v. State of Karnataka, AIR, 2010, MCMLXXIV.

³⁰ “161. Examination of witnesses by police.,.”,

Any person who have knowledge of the facts and circumstances

1. by a police officer making an investigation of the case: or
   1. Police officer not below such rank as the state government may by order prescribed in this behalf.
   1. Person whom calls to investigation is bound to give answer.
   1. Writing down the statement by the police officer examination conducted under this section and making separate record of the each statement.

the law. Narco-test in India is in the growing form not completely matured, absence of law, scarcity of rules and regulations is the actual plausibility of time. A person is entitled to wear fundamental right on account of social benefit and interest is relative question which can be solved by judiciary only but procedural safeguard which were laid down by the Supreme Court before a decade ago, not satisfied the purpose for which it was consigned. Law is the living course; it should be accommodate the living aspiration and desires of the people.

References:

¹ Justice K.S. Puttaswamy and Ors. v. Respondent: Union of India (UOI) and Ors., MANU, 2017.

² “IJFMT July-Dec 2011.pdf,.”

³ Gobind v. State of Madhya Prade, SCC, 1975.

⁴ Ibid.

⁵ Ajay Kr. Barnwal and Dr.S.N Ambedkar, “Narco-analysis Test: An analysis of various Judgements of Indian Judiciary,” 19 IOSR Journal of Humanities and Social Science 52–7 (2014).

⁶ Ibid.

⁷ Dharmapal v. State, MANU, 2003.

⁸ Ibid.

⁹ State is allowing to make restriction on the freedom available under Article 19 (1), on the following grounds; these restrictions given under Art.19 (2) to (6); including Article 19 (g) condition applied.

¹⁰ R.V. KELKAR, “[Explanation.—In this section and in sections 53A and 54,— (a) ‘examination’ shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;” Criminal Procedure Code (Eastern Book Company).

¹¹ “The Code Of Criminal Procedure, 1973,”available at: https://indiankanoon.org/doc/445276/ (last visited July 22, 2021).

¹² Ananthi S. Bharadwaj and Sumithra Suresh, “Narco Analysis and Protecting the Rights of the Accused,” 4 NALSAR Student Law Review 121–33 (2008).

¹³ Selvi v. State of Karnataka, AIR, 2010, MCMLXXIV.

¹⁴ In K.S. Puttaswamy and Others v. Union of India, MANU, 2017.

¹⁵ Ibid.

¹⁶ Nandini Satpathy v. P.L. Dani and Ors., MANU, 1978.

¹⁷ Ibid.266

¹⁸ Justice K.S. Puttaswamy and Ors. v. Respondent: Union of India (UOI) and Ors., MANU, 2017.

¹⁹ Ibid.

²⁰ Ibid.

²¹ Rayaan Chawla v. University of Delhi and Ors., , DE/1983 MANU/ (2020).

²² Jigya Yadav (Minor) through Gurdian/Father Hari Singh v. C.B.S.E. and Ors., MANU, 2021.

²³ Ibid.

²⁴ Krishnadas Rajagopal, “Involuntary narco tests an intrusion into a person’s mental privacy: Supreme Court” The Hindu (New Delhi, 4 October 2020), section National.

²⁵ “PressReader.com – Your favorite newspapers and magazines.,”available at: https://www.pressreader.com/india/the-hindu/20201005/281998969913917 (last visited July 14, 2021).

²⁶ Right To Privacy – Civilsdaily, https://www.civilsdaily.com/story/right-to-privacy/ (last visited Jul 14,

2021).

²⁷ Jeeshan and Ors. v. State of U.P. and Ors., MANU, 2021. ²⁸ Satyama Dubey and Ors. v. Union of India, MANU, 2020. ²⁹ Selvi v. State of Karnataka, AIR, 2010, MCMLXXIV.

³⁰ “161. Examination of witnesses by police.,.”,

Any person who have knowledge of the facts and circumstances

1. by a police officer making an investigation of the case: or
2. Police officer not below such rank as the state government may by order prescribed in this behalf.
3. Person whom calls to investigation is bound to give answer.
4. Writing down the statement by the police officer examination conducted under this section and making separate record of each statement.