Narcoanalysis is being mainstreamed into investigations and court hearings in India. This raises grave scientific and ethical questions.
NARCOANALYSIS has become an increasingly, perhaps alarmingly, common term in India. It refers to the process of psychotherapy conducted on a subject by inducing a sleep-like state with the aid of barbiturates or other drugs. In a spate of high-profile cases, such as those of the Nithari killers and the Mumbai train blasts, suspects have been whisked away to undergo an interview, drugged with the barbiturate sodium pentothal.
This practice has also garnered support from certain State governments as well as the judiciary. Politicians have fallen into the habit of hurling the term `narcoanalysis' at each other. In 2006, Karnataka Congress leader H. Vishwanath suggested that Chief Minister H.D. Kumaraswamy and his colleagues undergo narcoanalysis in the Chenamma Trust bribery case. The Home Ministry's forensic science directorate has yet to withdraw a controversial manual on best practices in narcoanalysis in which it states that facilities for narcoanalysis need to be expanded. There is also talk of the National Institute of Mental Health and Neurosciences (NIMHANS) in Bangalore working with the Gandhinagar Forensic Science Laboratory (FSL) to train personnel in this technique. It is not surprising then that there are about 300 people in the narcoanalysis queue at the FSL, Bangalore, alone.
It would appear that the narcoanalysis beast has acquired a life of its own. It is increasingly knocking at the doors of courts and finding ready acceptance as a device to get at the truth during police investigations, though its scientific basis and value are under strong challenge. It is for this reason that the scientific, legal, and evidentiary issues relevant to the narcoanalysis debate need to be discussed critically.
Narcoanalysis is rarely used for therapeutic purposes today. The reliability of the practice has been questioned by leading psychiatric and forensic experts. Dr. P. Chandra Sekharan, the highly regarded former Director of the Forensic Sciences Department of Tamil Nadu, has characterised the practice as an unscientific, third-degree method of investigation. Nevertheless, sections of the police in India and those connected with investigative agencies consider it the golden ticket to solving difficult cases.
Far from being novel, truth serums have been in use since the early part of the 20th century. The use of the drug scopolamine for criminal narcoanalysis was first reported in 1922. Barbiturates, which have been in use since the beginning of the last century, were being used in psychotherapy for narcoanalysis by 1930 along with other methods of therapy. During and after the War years, United States armed forces and intelligence agencies continued to experiment with truth drugs. The Central Intelligence Agency (CIA) has admitted to using these as part of its interrogation tactics, and a declassified CIA interrogation manual does concede that while truth drugs can be useful in overcoming resistance not dissolved by other methods, the actual content of what comes out during the interrogation can be "psychotic manifestations... hallucinations, illusions, delusions or disorientation".
At the 1977 U.S. Senate hearings on its secret mind-control project, the CIA acknowledged that "no such magic brew as the popular notion of truth serum exists".
It also said that even under the best conditions, the barbiturates would elicit an output contaminated by deception, fantasy, garbled speech, and so on. Studies have shown that persons who make truthful confessions are those who were likely to confess had interrogators persisted in using regular methods, and that persons who lie can continue to manifest a lie even under the influence of a so-called truth serum. In The Rape of the Mind, author and physician Joost Merloo says that the investigator can also induce and communicate his own thoughts and feelings to the suspect.
Scientific literature indicates that if narcoanalysis has any extra-therapeutic uses, it may be in making a suspect feel that he has revealed more than he actually did. With repeated questioning, it may be possible to reduce ambiguities although these cannot be eliminated.
In 1989, the New Jersey Supreme Court (State v. Pitts) prohibited the use of sodium amytal narcoanalysis because the results of the interview were not considered scientifically reliable, although there was some use to the interviews ("Educing Information" by National Defence Intelligence College). The court opined that subjects are susceptible to filling in gaps in stories with fabricated detail (hyperamnesia), or believing in false events (memory hardening), and hypnotic recall, where thoughts of non-existent events become embedded in the memory. ("Gaps to fill", Frontline; October 20, 2006).
Scientific scepticism and the absence of controlled studies have not deterred Indian investigating agencies from running to the FSL in Gandhinagar or, more likely, Bangalore. FSL Bangalore is the de facto hub for narcoanalysis for various police departments across the country. Narcoanalysis is done using sodium pentothal, in conjunction with three other tests - psychological profiling, polygraph (`lie detector') tests, and brain mapping. Polygraph tests, which one can learn to `pass' or `fail', are used for screening and confirmation purposes only. Brain mapping, a premature if promising technique not entirely free from controversy itself, indicates whether a subject's brain stores experiential knowledge about a certain object. Narcoanalysis is used when investigators need oral elicitations from a suspect. For instance, if brain mapping indicates that the suspect stores information about a blue getaway car allegedly used in the crime, then narcoanalysis, according to the FSL, Bangalore, is used to provide information such as the number of the car, where it is parked, and so on.
Narcoanalysis is usually conducted at Victoria Hospital, Bangalore. In addition to FSL psychologist Dr. S. Malini, who questions the suspect, there is an anaesthetist who administers the drugs and a physician who certifies the subject's fitness for the test. The psychologist also gathers and collates information such as first information reports (FIRs), autopsy reports, and biographical data when preparing for the test. The entire procedure is video-recorded and the subject usually signs a consent form.
Dr. B.M. Mohan, Director of FSL, Bangalore, attributes a 96 to 97 per cent total success rate to narcoanalysis. Included in the definition of total success rate is the discovery of information that either triggers a relevant section of the law or may be cross-verified with other tests (such as brain mapping). Assessments are aided by questionnaires handed out to investigating officers. For instance, if the suspect speaks about a gun hidden in a coconut grove, and this leads the police to recovering the weapon (which is admissible as evidence), it would count towards the success rate. Additionally, if someone mentions a blue car and this is recognised as being stored in the suspect's brain using brain mapping, that too would count towards the total success rate.
The abundance of scientific literature and forensic and psychiatric opinions on narcoanalysis does not shake Dr. Mohan's claims about the reliability of the practice because he says he has the data from some 300 cases to prove his contentions. Findings that point to the unreliability of narcoanalysis, according to Dr. Mohan, are usually based on studies of scopolamine and sodium amytal and are not applicable to sodium pentothal, which is used by the Indian laboratories. "Many people say there are fantasies in the narco. I totally disagree because they do not know the pharmacokinetics of pentothal sodium," he says, adding that during narcoanalysis the tendency is to sleep if not questioned, rather than hallucinating or fantasising.
There are two problems with this argument. Using sodium pentothal is not a new advance in narcoanalysis. Sodium pentothal was used for several decades in psychotherapy, according to Dr. C.R. Chandrashekhar, Deputy Medical Superintendent and Professor of Psychiatry for almost 30 years at NIMHANS. "Thiopental sodium will not make him [the patient] tell everything that is inside him. There is no guarantee that he will tell the truth," he says. The psychological fraternity around the world has consequently stopped using pentothal in all but the rarest cases, and if it is used, it is always with the consent of the patient.
Dr. Mohan's contention that it is difficult to manifest fantasies in narcoanalysis is also open to debate. False memory is an extremely well-researched area, according to Dr. Chittaranjan Andrade, a Professor of Psychopharmacology at NIMHANS, with at least 25 years of experience. "Even a person who is fully conscious can firmly believe in something that has not happened. There is a lot of research done on this subject," says Dr. Andrade.
Psychiatrists hold that some 50 per cent of all individuals are suggestible even while fully conscious, meaning they can be made to believe events that never actually happened. Therefore, while patients under narcoanalysis may find it difficult to lie consciously depending on the depth of the narcoanalysis, they can certainly say things that are on the surface of their minds. What a person says in a sedated state depends on a lot of factors, including their personality, how awake they are, how strongly they want to deny certain facts, and so on. "Under pentothal narcoanalysis, when inhibitions are lowered, a lot of the unconscious mind of the patient may come to the fore. The patient may say things that he wished were true and not that were necessarily true," says Dr. Andrade.
Explaining the case of a suspect who is repeatedly accused of a crime during regular interrogation, Dr. Andrade says, "The same thing goes on during the narcoanalysis. He [the suspect] remembers `you've done this, you've done this'. He says, `I have done that.'"
When science has outpaced the development of law or at` least the layperson's understanding of it, there are unavoidable complexities regarding what can be admitted as evidence in court. In the U.S. , where science often interfaces uncomfortably with the law, the Supreme Court offered four criteria, part of the Daubert Standard (1993), by which to judge the credibility of a scientific principle held by a minority of practitioners: hypothesis testing; peer review and publication; knowledge of error rates; and acceptability in the general scientific community.
We must give narcoanalysis its due and grant that it has provided valuable leads to the police in some instances. However, one swallow, or even many swallows in this case, does not a summer make. It is logically consistent for even a pseudo-science to produce reliable outcomes in particular cases. The overall reliability and science behind the practice can only be determined after statistical analysis of a sufficiently large sample.
The irony that we face in India is that the science has not leapfrogged the courts by any stretch of imagination. The Bangalore research results and methods have been neither peer-reviewed nor published. Regarding publication of the data, Mohan says he will go public with the FSL data in three to four months (from March 2007), and is willing to debate its implications at international forums. "We have secured convictions, we have secured cross-verification and we have stood through the challenges of the defence," he says. Asked how he could go against scientific practice, by calling data scientific when they have yet to be proved so, Dr. Mohan says, "Otherwise with what courage do you go to the court?" He adds that given the nature of narcoanalysis, it is not possible to get volunteers to facilitate controlled studies. Studies based on some 300-odd criminal investigations are unlikely to consist of controlled experimental data, and the feedback that goes into defining the success of the analysis is in part provided by police questionnaires. Here lurks a conflict of interest.
There are other significant legal aspects to the narcoanalysis debate. In a 2006 judgment (Dinesh Dalmia v. State), the Madras High Court held that subjecting an accused to narcoanalysis is not tantamount to testimony by compulsion. The court said about the accused: "He may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary." There are two fallacies in this reasoning. First, if narcoanalysis is all that it is made out to be by the Bangalore FSL, the accused will involuntarily answer questions posed to him during the interview. The second fallacy is that it is incorrect to say that the accused is merely taken to the laboratory against his will. He is then injected with substances. The breaking of one's silence at the time it is broken is always technically `voluntary'. Similarly, it can be argued that after being subject to electric shocks, a subject `quite voluntarily' divulges information. But the act or threat of violence is where the element of coercion is housed. In narcoanalysis, the drug contained in the syringe is the element of compulsion. The rest is technically voluntary.
In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: "No person accused of any offence shall be compelled to be a witness against himself." Statements made under narcoanalysis are not admissible in evidence. However, recoveries resulting from such drugged interviews are admissible as corroborative evidence. This is, arguably, a roundabout way of subverting the right to silence - acquiring the information on where to find the weapon from the subject when, in his right senses, he would not turn witness against himself.
Arguments have been made that narcoanalysis constitutes mental torture. It works by inhibiting the nervous system and thus lowering the subject's inhibitions. It is not difficult to interpret this as a physical violation of an individual's mind-space.
The Bombay train blasts case, the Nithari killers case, and the "beer killer" case in Mumbai (2007) are just a few examples of recent cases that involved narcoanalysis. The sources of demand for this practice are the State police departments. The decision to conduct narcoanalysis is usually made by the Superintendent of Police or the Deputy Inspector-General handling a case. A high-ranking official in the Karnataka Police told Frontline that the Police Departments in India had poor skills when it came to collection, collation and presentation of evidence before the courts. "Investigative skills at the grassroots are dwindling in India," he said. Consequently, when there is enormous pressure on a police department to solve a case, sending suspects to narcoanalysis not only buys time but also gives the impression that something concrete has been done about the case.
This is likely what happened in the Nithari case, where the chief accused, Moninder Singh Pandher, and his domestic help, Surender Koli, were sent to Gandhinagar for narcoanalysis in January 2007, according to a reliable source. Often these decisions are backed up by the genuine belief in the "Bangalore Phenomenon". Bangalore, perceived to be the science hub of India, is mistakenly attributed with being able to use scientific tools to solve any and all investigations.
There are, however, sections of those connected to investigating agencies who feel there is a legitimate case for narcoanalysis. These cases would include the Jessica Lal and Best Bakery investigations where witnesses turned hostile or rape cases where issues of consent are being debated, according to Dr. M.S. Rao, Director and Chief Forensic Scientist at the Directorate of Forensic Sciences, the Home Ministry's forensic science unit.
With the Bombay High Court ruling permitting narcoanalysis, its use should be encouraged in grave offences, writes M. Sivananda Reddy, Superindent of Police for Cyber Crimes at Criminal Investigation Department (CID), Andhra Pradesh. Though he cautions against the abuse of narcoanalysis after extensively acknowledging its many shortcomings, Reddy says that using drugs in investigation is of particular use when the investigating officer is hard pressed for time or working to disrupt imminent plots including terrorist acts.
If this line of argumentation sounds familiar, it is probably because it is as old as controversial investigative methods themselves. The argument has also cropped up frequently in the media after the 9/11 attacks in Alan Dershowitz's ticking-bomb terrorist case, where the Harvard Law School professor argues for legitimising torture in select cases, such as when there is a hypothetical bomb waiting to explode. There are many arguments against the selective use of normally banned cruel practices. Authorities are likely to abuse the power to decide which situations will warrant such exceptions, even when such extraordinary situations are explicitly laid out by law. It will be difficult to find a fool-proof way to determine which suspect is concealing information about a hypothetical bomb. It will often be impossible to know if there is a bomb ticking in the first place. These questions of discretion aside, when a country claims to be committed to human rights and against torture, one may ask if there can ever be a situation that warrants a deviation from its commitment to such principles.
Proponents of narcoanalysis have also argued that the U.S. has secretly resumed truth serum interviews. After 9/11, a Department of Justice Memorandum to the White House discussed options of using truth serums. Additionally, Gerald Posner's book, Why America Slept, alleges that the U.S. covertly allows its intelligence agencies to conduct sodium pentothal interviews. Nevertheless, these instances are behind the eyes of the law and the public, unlike the Indian case. American interrogation techniques are far from being the gold standard, having earned the ire of the international community and large sections of the U.S. population and legislature.
While the expert studies and court opinions available internationally have granted that there may be some use in narcoanalysis, the overwhelming evidence is that narcoanalysis is by no means a reliable science. In the face of a near-consensus internationally, one or two Indian forensic laboratories claim to have new evidence and studies claiming remarkable success rates for the process. It is now incumbent on them to prove their claim that narcoanalysis is backed by sound science. In the absence of proof, narcoanalysis must necessarily be suspended, especially given its ethical and human rights implications.
State governments need to work with the central authorities to enhance the investigative capabilities of their police departments. The Indian criminal justice system has an alarmingly low conviction rate and the situation needs to be rectified with emphasis on real science and state-of-the-art technology. According to one law enforcement official, this starts with training the investigating officer at the constabulary level in basic investigative sciences. Usually it is the investigating officer who takes charge of an investigation, asking the forensic scientist to accompany him to the crime site to collect certain evidence and provide expert opinion on certain aspects of the crime, which the forensic scientist has the expertise to do. Instead, the police now hand over one of the most crucial parts of the investigation to a clinical psychologist conducting narcoanalysis. Interrogation is an art as well as a science. It takes enormous amounts of training and patience - skills evidently lacking in much of the police force and increasingly outsourced to Bangalore.
The Central government must make a clear policy stand on narcoanalysis - because what is at stake is India's commitment to individual freedoms and a clean criminal justice system. In a positive development, the Supreme Court, in November 2006, ordered a stay on a metropolitan judge's order to conduct narcoanalysis on K. Venkateswara Rao, in the Krushi Cooperative Urban Bank case. Rao refused to sign a consent form, and to its credit, the FSL, Gandhinagar, refused to conduct the test without the signed consent form. The Supreme Court decision on the case is awaited and will have a significant bearing on the use of narcoanalysis in India.
Sriram Lakshman has worked at a litigation consulting firm and the World Bank in Washington for several years.
