Do you have a right to the “truth serum” or narco analysis test in a criminal case?

Transcript

Snape: Know what it is?

Harry: Bubble juice, sir.

Snape: Veritaserum. Three drops of this and you know who himself would spill his darkest secrets. The use of it on a student is regrettably forbidden. However, should you ever steal from my personal stores again, my hand, might just slip over your morning pumpkin juice.

Harry: I haven’t stolen anything.

Snape: Don’t lie to me.

Potter nerds may remember this scene from the Goblet of Fire. The seemingly sinister Professor Snape was accusing Harry of breaking into his office to steal the ingredients for the polyjuice potion.

I recalled the scene while reading the judgment of the Supreme Court in Amlesh Kumar v State of Bihar. There, the subdivisional police officer, the STPO in Mahua had the idea of conducting a narco analysis test involving a real life truth serum on the accused in a murder case related to dowry harassment.

The sessions judge had denied bail to Amlesh. When the case reached the Patna High Court on appeal, the STPO asked for a later date, assuring the bench that she would gather more evidence which included the results of a narco analysis test conducted on all the accused.

Amlesh immediately went to the Supreme Court to appeal the High Court’s acceptance of the STPO submission. Amlesh had the support of the Supreme Court’s landmark decision in Selvi v State of Karnataka, a 2010 decision where it had held that forceful subjection of an accused to a narco analysis test constituted a violation of the personal liberty guaranteed by Article 21 of the Constitution.

A three-judge bench in Selvi had explained how popular perceptions of torture and cruelty are associated with gory images of bloodletting and broken bones. However, CJI KG Balkrishnan wrote in judgment that we must recognise that a forcible intrusion into a person’s mental processes is also an affront on human dignity and liberty.

The bench also noted that the results of such a test cannot be submitted as the sole evidence in a trial because the accused does not have conscious control over the responses. Selvi, however, had kept the door open for voluntary tests.

As in J.K. Rowling’s fictional world, the use of the test was made subject to strict conditions. The court extended the National Human Rights Commission’s guidelines for a lie detector test to narco analysis too.

The conditions include the accused’s consent before a magistrate, a lawyer’s presence during the test, and testing by an independent agency such as a hospital.

The Supreme Court found that the Patna High Court was wrong to allow a test when the case solely concerned Amlesh’s bail application. But it took the opportunity to expand the ambit of the case and considered a wider question: Could the narco analysis test be claimed by the accused as a matter of right? Could they use the results to lead evidence to clear their name?

The court thought this a worthy question to address after the amicus, that is a friend of the court appointed by the bench, pointed to diverging views of high courts.

The bench in Amlesh Kumar clarified that the accused may request a test at an appropriate stage, which is when the accused is exercising his right to lead evidence in a trial. However, it also noted that the right is not indefeasible.

The court must consider the totality of circumstances surrounding the matter, such as free consent, whether appropriate safeguards have been put in place, and so on.

No slipping of hands a la Snape or breaking into offices like Potter.

While emphasising the safeguards for a narco analysis test, the real life Veritaserum is Sodium Pentothal, which puts the user in a hypnotic trance. The Court, no doubt, had in mind the blurred boundaries of criminal investigation in our country, where voluntariness is often not so voluntary.

This was a case featured in the Supreme Court Observer Law Reports or SCO.LR, where we pick up and summarise five most important cases from the Court every week.

Thank you for watching.

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