Efficacy and Ethics of Narco-analysis
Geo Francis E
INTRODUCTION
The search for effective aids to interrogation is probably as old as man’s need to obtain information from an uncooperative source and as persistent as his impatience to shortcut any tortuous path. Any technique that promises an increment of success in extracting information from an incompliant source is ipso facto of interest in intelligence operations. In the annals of police investigation, physical coercion has at times been substituted for painstaking and time consuming inquiry in the belief that direct methods produce quick results. Development of new tools of investigation has led to the emergence of scientific tools of interrogation like the Narco-analysis or ‘truth drug/serum’ test. The notion of drugs capable of illuminating hidden recesses of the mind, helping to heal the mentally ill and preventing or reversing the miscarriage of justice, has provided an exceedingly durable theme for the press and popular literature when Narco-analysis tests are common. As interrogators fail to find the offender and make series of embarrassing bungles, they are under pressure to find the culprit, and so they turned to a practice long since banned in most democracies, but on the rise in India: the Narco-analysis. Such tests are a result of advances in science but they often raise doubts regarding basic human rights and also about their reliability.
While acknowledging that “truth serum” is a misnomer twice over – the drugs are not sera and they do not necessarily bring forth probative truth – human right activists and some ethicists continue to appeal against the use of it. Although there are few success stories in the history of Narco-analysis, the drugs are more maligned than need be and more widely employed in criminal investigation than can officially be admitted. Narco-analysis, however, is illegal in Britain, the United States and most other Western democracies, although security officials have suggested that it should be used on suspected terrorists[i] — and some allege that it already has been. The Forensic Science Laboratory (FSL), Bangalore, has been conducting lie detection tests since 1999. The first Narco-analysis was done there in 2001 on an individual connected with offences committed by Veerappan. [ii]
Human rights and medical ethics advocates, however, accuse the police of using Narco-analysis as a substitute for proper criminal investigation. They say that it violates the Constitution, which prohibits anyone accused of an offence from being “compelled to be witness against himself”.[iii] Some say that it is unethical for doctors to take part in Narco-analysis, since the drug tends to be administered against the subject’s will and can cause respiratory or cardio-vascular complications. Doctors often have to slap the prisoners to keep them awake, according to rights groups. “This is nothing but torture,”[iv] said Amar Jesani, a co-founder of the Forum for Medical Ethics Society.
There are views, at the same time, in favour of the use of Narco-analysis in police investigation. According to the supporters of these views, the revelations made during the Narco-analysis have been found to be of very useful in solving sensational cases. In most of these cases, the revelations made have led to the discovery of incriminating information’s favouring probative truth and consequently recoveries have been made in large number of cases. It is relevant to mention the observation made by Justice V. R. Krishna Iyer a great champion of Human Rights especial of accused and under trial prisoners; in Nandini Sathpathy’s case that “More than human dignity of accused is involved; the Human personality of others in the society must also be preserved. Thus the values reflected by the privilege are not the sole desideratum; society’s interest is of equal weight.”[v] The supporters of Naro-analysis argue, finally, the legal system should imbibe developments such as Narco-analysis as it is based on well established principles of science and not violative of fundamental legal principles and for the good of the society.
Legal questions are raised about their validity with some upholding its validity in the light of legal principles and others rejecting it as a blatant violation of constitutional provisions. We cannot close our eyes against the ethical concerns of Narco-analysis test too. Narcoanalysis raises a host of ethical, legal, and medical issues, hence its pertinence as the topic for this research paper. This research paper, therefore, deals with what is Narco-analysis? What does it entail? How reliable is it? What are the problems associated with it? And how does the medical profession look at such tests? How it is made use in police investigation? All the above aspects are studied by analysing important ethical principles concerning human dignity and rights.
1. NARCO ANALYSIS
1.1. Introduction
The advancement of science has led to many great and modern machines and methods. A great number of discoveries and research has led to the overall betterment of human civilization as we know it. Many fields have benefited from major advancements in medical sciences. Man has had an immemorial quest for truth and has been search of various techniques to discover truth. Thus, man has turned to the field of medical science in search of the holy grail of truth detectors. It has so far eluded him but this quest has turned up a few tricks with which the police would be able to apprehend the culprit. Over the past 100 years, there have been many developments regarding the scientific tools for interrogation and investigations. The need for quick methods of discovering truth along with the impatience of man has had a great deal to contribute to this particular field of forensic science.
Sir James Fitzjames Stephens, writing in 1833, rationalizes a grisly example of such impatience of the Indian police, “it is far pleasanter to sit comfortably in the shade, rubbing red pepper in a poor devil’s eyes than, to go about in the sun hunting up evidence.”[vi]
1.2. Truth Finding Tests
It has long been known that certain drugs which have a depressing effect upon central nervous system function, also produce a remarkable candour or freedom from inhibition in the subject, which causes him to give truthful answers to questions. The oldest of these drugs is alcohol. For centuries investigators have realized that one method of loosening the tongue and eliminating repressive influences in an uncommunicative subject is to ply him with liquor. This well-known effect of alcohol has given rise to the time-honoured aphorism “in vino veritas”[vii] – in wine there is truth. With the advent of anaesthesia about a century ago, it was observed that during the induction period and particularly during the recovery interval, patients were prone to make extremely naïve remarks about personal matters, which, in their normal state, would never have been revealed. Probably the earliest direct attempt to utilize this phenomenon in criminal interrogation stemmed from observation of mild type of anaesthesia commonly used in obstetrical practice during the period of about 1903-1915 and known as “twilight sleep.”[viii]
As early as 1885, Caesar Lombroso used a device to measure changes in blood pressure for police cases;[ix] a device by Vittorio Benussi used to measure breathing[x] and an abandoned project by William Marston used blood pressure and galvanic skin responses.[xi] A device recording both blood pressure and galvanic skin response was invented in 1920 by Dr John A Larson of the University of California and first applied in law enforcement by the Berkeley Police Department. This was the first Lie detector or ‘Polygraph’.[xii]
P300 or Brain mapping Test was developed and patented in 1995 by neurologist Dr Lawrence A Farwall, Director and Chief Scientist, ‘Brain Wave Science’, Iowa.[xiii]
1.2.1. Polygraph or Lie Detection Test
It is an examination, which is based on an assumption that there is an interaction between the mind and body and is conducted by various components or the sensors of a polygraph machine, which are attached to the body of the person who is interrogated by the expert. The machine records the blood pressure, pulse rate and respiration and muscle movements. Polygraph test is conducted in three phases: a pre-test interview, chart recording and diagnosis. The examiner (a clinical or criminal psychologist) prepares a set of test questions depending upon the relevant information about the case provided by the investigating officer, such as the criminal charges against the person and statements made by the suspect. The subject is questioned and the reactions are measured. A baseline is established by asking questions whose answers the investigators know. Lying by a suspect is accompanied by specific, perceptible physiological and behavioural changes and the sensors and a wave pattern in the graph expose this. Deviation from the baseline is taken as a sign of lie. All these reactions are corroborated with other evidence gathered. The polygraph test was among the first scientific tests to be used by the interrogators. [xiv]
It was Keeler who further refined the polygraph machine by adding a Psycho-galvanometer to record the electrical resistance of the skin.[xv]
1.2.2. P300 or the Brain Mapping Test
The P300 was discovered originally by Samuel Sutton, Margery Braren, Joseph Zubin, and E. R. John as noted in Science magazine.[xvi] This test later was developed and patented in 1995 by neurologist Dr. Lawrence A. Farwell, Director and Chief Scientist “Brain Wave Science”, IOWA. In this method, called the “Brain-wave finger printing”; the accused is first interviewed and interrogated to find out whether he is concealing any information. Then sensors are attached to the subject’s head and the person is seated before a computer monitor. He is then shown certain images or made to hear certain sounds. The sensors monitor electrical activity in the brain and register P300 waves, which are generated only if the subject has connection with the stimulus i.e. picture or sound. The subject is not asked any questions. [xvii] Dr. Farwell has published that a MERMER (Memory and Encoding Related Multifaceted Electro Encephalographic Response) is initiated in the accused when his brain recognizes noteworthy information pertaining to the crime.[xviii] These stimuli are called the “target stimuli”. In a nutshell, Brain finger printing test matches information stored in the brain with information from the crime scene. Studies have shown that an innocent suspect’s brain would not have stored or recorded certain information, which an actual perpetrator’s brain would have stored. In USA, the FBI has been making use of “Brain mapping technique” to convict criminals.[xix]
1.2.3. Narco-Analysis
The term Narco-Analysis is derived from the Greek word ναρκη (meaning “numbness” or “anesthesia” or “torpor”)[xx] and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. The term Narco-analysis was coined by Horseley.[xxi] Narco-analysis first reached the mainstream in 1922, when Robert House, a Dallas, a Texas obstetrician used the drug scopolamine on two prisoners.[xxii] In the first test conducted on two prisoners in the Dallas country jail, both men denied the charges on which they were held, and both, upon trail were found not guilty. [xxiii]
Enthusiastic at this success, House concluded that a patient under the influence of scopolamine “they cannot create a lie because they have no power to think or reason.”[xxiv] His experiment and this conclusion attracted wide attention, and the idea of a ‘truth drug’ was thus launched upon the public consciousness. Because of a number of undesirable side effects, scopolamine was shortly disqualified as a ‘truth drug’.[xxv] Among the most disabling of the side effects are hallucinations, disturbed perception, somnolence, and physiological phenomena such as headache, rapid heart and blurred vision, which distract the subject from the central purpose of the interview. [xxvi]
1.3. Narco-analysis Test & Use of Barbiturates
1.3.1. Barbiturates and Its Effect on Human Body
As with most drugs, little is known about the way barbiturates[xxvii] work or exactly how their action is related to their chemistry. But a great deal is known about the action itself. They can produce the entire range of depressant effects from mild sedation to deep anaesthesia – and death. In small doses they are sedatives acting to reduce anxiety and responsiveness to stressful situations; in these low doses, the drugs have been used in the treatment of many diseases, including peptic ulcer, high blood pressure, and various psychogenic disorders. At three to five times the sedative dose the same barbiturates are hypnotics and induce sleep or unconsciousness from which the subject can be aroused. In larger doses a barbiturate acts as an anaesthetic, depressing the central nervous system as completely as a gaseous anaesthetic does. In even larger doses barbiturates cause death by stopping respiration.
The barbiturates affect higher brain centres generally. The cerebral cortex – that region of the cerebrum commonly thought to be of the most recent evolutionary development and the centre of the most complex mental activities – seems to yield first to the disturbance of nerve-tissue function brought about by the drugs. Actually, there is reason to believe that the drugs depress cell function without discrimination and that their selective action on the higher brain centres is due to the intricate functional relationship of cells in the central nervous system. Where there are chains of interdependent cells, the drugs appear to have their most pronounced effects on the most complex chains, those controlling the most “human” functions.[xxviii]
The lowest doses of barbiturates impair the functioning of the cerebral cortex by disabling the ascending (sensory) circuits of the nervous system. This occurs early in the sedation stage and has a calming effect not unlike a drink or two after dinner. The subject is less responsive to stimuli. At higher dosages, the cortex no longer actively integrates information, and the cerebellum, the “lesser brain” sometimes called the great modulator of nervous function, ceases to perform as a control box. It no longer compares cerebral output with input, no longer informs the cerebrum command centres of necessary corrections, and fails to generate correcting command signals itself. At this stage consciousness is lost and coma follows. The subject no longer responds even to noxious stimuli, and cannot be roused. Finally, in the last stage, respiration ceases.[xxix]
1.3.2. An Outline of Narco-analysis Test
Narco-analysis refers to the practice of administering barbiturates or certain other chemical substances, most often Pentothal Sodium, to lower a subject’s inhibitions, in the hope that the subject will more freely share information and feelings.[xxx] The subject is administered with Pentothal Sodium, Sodium Thiopental and Suxamethonium Chloride, barbiturates or even a cocktail of these drugs. The Narco-analysis test is conducted by mixing 3 grams of above chemicals dissolved in 3000 ml of distilled water and expert inject a subject the solution under controlled circumstances in a laboratory or in an operation theater. The dose depends on the person’s sex, age, health and physical condition. The subject, in a state of hypnosis, cannot speak on his/her own but can answer specific but simple questions after giving some suggestions. These drugs are also called ‘truth serums’ and help in extracting the truth in the form of repressed feelings, thought or memory of a person.[xxxi]
A person is able to lie by using his imagination, but in Narco-analysis Test, the subject’s inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie. The subject which is put in a state of Hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers. This drug works on the principle of inhibiting the thought filtration process of the brain. The theory behind this is that when we lie, our brain filters our thoughts and decides what is to be revealed and what has to be concealed. If this process is inhibited, a person can no longer filter his thoughts and has to speak the truth, or so is assumed. In such sleep-like state efforts are made to obtain “probative truth” about the crime. According to Amar Jesani, who is a strong propend against the use of Narco-analysis, his counter parties argue the following:
That lying is a more complex mechanism of the brain than telling the truth. That lying is mediated through GABA (Gamma Amino Butyric Acid) by the brain. Since the sodium pentothal has inhibitory effect on the GABA, the person is less inhibited, becomes more lucid at a certain depth of anaesthesia, i.e. in the second stage, which was always known as the stage when the person getting anaesthesia was in a state of excitement. This is picked up to make an assumption that since GABA is inhibited by this particular anaesthetic agent, the person’s capacity to lie is also reduced or removed temporarily. And, above all, the contention is that in such a state, when a well-trained psychologist asks carefully formulated questions, the person’s mind will have no option but to tell the truth!
As we proceed to the following chapters, we may analyse the reliability and ethics of these findings.
1.3.3. The Team of Narco-analysis
The team that conducts Narco-analysis consists of one anaesthetist, one physician and one clinical/ forensic psychologist.[xxxii] The responsibility of each expert in the team is well defined. The physician certifies the fitness of the person before and after Narco-analysis, the anaesthetist modulates the depth of anaesthesia required depending upon the quantum of information to be obtained and monitors the various stages of anaesthesia.[xxxiii] Only the clinical or forensic psychologist interacts with the individual who is a “trance”[xxxiv] and gives reports along with videotapes to the courts on behalf of the team. No medical professional in the team is involved in interrogating the individual. This task is the exclusive domain of the clinical/forensic psychologist. The revelations made during this stage are recorded both in video and audio cassettes.[xxxv] The forensic psychologist will prepare the report about the revelations, which will be accompanied by a compact disc of audio-video recordings. [xxxvi] The strength of the revelations, if necessary, is further verified by subjecting the person to polygraph and brain mapping tests. The report prepared by the experts is what is used in the process of collecting evidence. This procedure is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.[xxxvii]
Wrong dose can send the subject into coma or even result in death. The rate of administration is controlled to drive the accused slowly into a hypnotic trance. The effect of the bio-molecules on the bio-activity of an individual is evident as the drug depresses the central nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition.
1.4. Narco-analysis: Psychological Treatment Vs. Police Investigation
For the treatment of mental disorders and illness, the physician has to find out and come across the incident that brought on the disorder. Usually the psychiatrists use methods such as psycho-analysis and hypnotism as diagnostic tools for this purpose. Later, as a short-cut method the use of drugs such as sodium Amytal and sodium Pentothal came in practice. The use of the so called truth drug in treatment is somewhat as follows:
As a psychiatric patient, suffering from some neurotic illness, approach a psychiatrist; the physician establishes a relationship of confidence with his patient by means of interviews or some other methods. The physician learns all that the patient expressed through her words and emotional situation or the situations that brought on the neurotic condition. When the physician recognizes that it is too difficult to recall and express further, or perhaps impossible, he makes use of Pentothal treatment as a way out. In this narcotic condition the patient usually talks freely about herself. Sometimes her talking will spontaneously follow the lines, sometimes he must be skilfully direct the patient to reveal more regarding the sickness. Often, too, as the effects of the drug begin to wear off, the patient begins unconsciously to gain an insight into her troubles and to make appropriate readjustments. Then it is the task of the psychiatrist to aid the patient to a completion of the insight and readjustment. Narco-analysis, in this case, not only enables the physician to diagnose the illness but also helped the patient toward self-understanding and adjustment. Drs. Grinker and Spiegel, therefore, prefer to call the use of truth drug as Narco-synthesis. [xxxviii]
Later, Narco-analysis, a tool for psychiatric treatment became part of police investigation. By 1935 Clarence W. Muehlberger, head of the Michigan Crime Detection Laboratory at East Lansing, was using bartiturates on reluctant suspects, though police work, continued to be hampered by the courts’ rejection of drug-induced confessions except in a few carefully circumscribed instances.[xxxix]
Indian police officers believe that Narco-analysis as a scientific tool of interrogation and it helps a lot in crime prevention and detection. It also helps in getting clinching evidence and is an effective and non-hazardous method of inducing hypnosis. According to Indian police, if a criminal was put under Narco-analysis then he would reveal about the crime committed, where he had hidden the weapons used in committing the crime and why did he do it? This would help in getting the motive for the crime and collect other evidence needed for prosecution. This investigative technique, as some argue, however humanitarian as an alternative to physical torture, still raises serious question of individual rights and liberties.
The use of so-called ‘truth’ drugs in police work is similar to the accepted psychiatric practice of Narco-analysis; the difference in the two procedures lies in their different objectives. The police investigator is concerned with empirical truth that may be used against the suspect, and therefore almost solely with probative truth: the usefulness of the suspect’s revelations depends ultimately on their acceptance as evidence by a court of law. The psychiatrist, on the other hand, using the same ‘truth’ drugs in diagnosis and treatment of the mentally ill, is primarily concerned with psychological truth or psychological reality rather than empirical fact. A patient’s aberrations are reality for him at the time they occur, and an accurate account of these fantasies and delusion, rather than reliable recollection of past events, can be the key to recovery. [xl]
1.5. Narco-analysis in India
Although Narco-analysis is banned in many countries, a few democratic countries, India most notably, still continue to use Narco-analysis. Now in India, Narco-analysis is steadily being mainstreamed into criminal investigations, court hearings, and laboratories and has also passed under the judicial scanner. The application of such tests has become increasingly, perhaps alarmingly, common term in India. 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 Narco-analysis. This has come under increasing criticism from the public and the media in that country. In India, the Narco-analysis test is mainly done in Forensic Labs at Bangalore and Ahmadabad.
But aren’t we bit hasting in arriving conclusions? Do we need a rethought on seemingly remorseless application of this so called “sinister discovery”? Ultimately are we letting our precious human dignity to be prejudiced in laboratory?
1.6. Narco-analysis and Its Admissibility in Courts
Though the expert opinion given to the court in the famous case of US V Solomon, 753 F.2d.1522 (9th Cir.1985) 1985, which directly debated the issue of Narco-analysis, established that “truth serum is now generally accepted investigative technique”. The experts said: “Adequate safeguarding against unreliability is possible.” However “narcoanalysis does not reliably induce truthful statements.”[xli]
Lawyers in India are divided on whether the results of Narco-analysis test are admissible as evidence in courts. Confessions made by a semi-conscious person are not admissible in court, it merely aids the investigation procedure. A Narco-analysis test report has some validity but is not totally admissible in court, which considers the circumstances under which it was obtained and assesses its admissibility. Under certain circumstance, a person may hold a certain belief. By repeatedly thinking about an issue in a particular way, he begins to believe that what he is thinking is right. But it need not necessarily be the truth. Results of such tests can be used to get admissible evidence, can be collaborated with other evidence or to support other evidence. But, some argue, if the result of this test is not admitted in a court, it cannot be used to support any other evidence obtained the course of routine investigation.[xlii]
According to Dushyant Dave[xliii] the information revealed during truth serum test cannot have any evidentiary value in a court of law.
“Articles 20 and 21 are sacrosanct to my mind and nobody is allowed to touch them. The moment courts accept Narco-analysis results as evidence, it will be violation of the fundamental rights,” the senior lawyer told students, adding that the only admissible evidence is oral statement made before court as per Indian Evidence Act…. He added, “Parliament, too, has not stepped in by making any legislation on the issue of Narco-analysis test without consent of a person.” According to him, Article 13 offers a permanent injunction on making narco test result admissible evidence, as ultimately it is considered “a coerced statement”. During the discussion, Dave also fell back on former solicitor general Harish Salve’s argument that performing narco tests on a person without his consent is infringing on his privacy, which should not be permitted.[xliv]
1.7. Conclusion
Now we are on the cusp of seeing Narco-analysis, which has been touted as an investigating tool, on its way to being elevated to the status where the results of the test themselves will be made admissible as evidence.
There are no figures available of how many people have been put through Narco-analysis in India in past years. But this test illustrates the inherent violence of some of these supposedly scientific technologies which are being touted as tools of investigation right now but which may become admissible evidence, and of trial by media.
However, Narco-analysis raises serious scientific, legal, and ethical questions. These need to be addressed urgently before the practice spreads further. Following chapters of this research paper is an attempt to study on it from its legal and ethical perspectives.
2. THE EFFICACY OF NARCO-ANALYSIS
2.0. Introduction
Efficacy is the ability of an intervention to produce the desired beneficial effect in expert hands and under ideal circumstances. In the case of Narco-analysis we evaluate the ability of the test, the so called use of Truth Serum, to produce the desired beneficial effect in the process of investigation. Truth Serum is used to extract the truth but what is thus ‘extracted’ may not, necessarily, be the truth. The first question, therefore, is not if Narco-analysis can unearth the truth how effective it is as a tool of investigation. This chapter of the research paper deals with the efficacy and reliability of Narco-analysis based on aspects of torture, the dubious scientific value of the process and the Daubert standards defined by the Supreme Court of United States for any scientific evidence to be of use in legal proceedings.
2.1. Narco-analysis: Rape of Human Mind and Torture
One of modern civilization’s achievements is the realization and dissemination of the knowledge that the rights to life, liberty and security of person are primary, inherent and inalienable to every human being, irrespective of race, nationality, economic status or other man-made discriminations. The Universal Declaration of Human Rights article 3 of 1948 and article 21 of the Indian Constitution recognize these rights as fundamental rights. Torture deals with medical, legal and ethical issues in relation to the barbaric practice of torture in various situations.
Torture is one of the most barbaric acts of state repression, and it constitutes a direct and deliberate attack on the core of the human personality. Like slavery, it is an expression of the almost unlimited power of one individual over another. In the case of slavery, the human being is degraded to the condition of a non-human object deprived of legal personality. Torture aims to destroy human dignity and reduce the victim to the status of a passive tool in the hands of the torturer. Torture violates the basic dignity of the human person that all religions hold dear. It degrades everyone involved – policy makers, perpetrators and victims. It contradicts the most cherished ideals of human fraternity. Any policies that permit torture and inhumane treatment are shocking and morally intolerable.
Today, torture in any form is condemned by civilized societies, and is not acceptable in any situation. Yet, clandestinely torture is prevalent in some form or the other all over the world. Only the methods of torture have changed and have become more “sophisticated” and consequently more “effective” and difficult to detect medically. According to few critique and human right advocates, Narco-analysis is one of such forms.
Torture has been criticized on humanitarian and moral grounds, also on the grounds that evidence extracted by torture can be unreliable and that the use of torture corrupts institutions which tolerate it. Torture is universally accepted as:”
“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”[xlv]
Organizations like Amnesty International argue that the universal legal prohibition is based on a universal philosophical consensus that torture and ill-treatment are repugnant, abhorrent, and immoral.
Narco-analysis is called ‘rape of human mind’. Without the permission of the subject, the interrogator enters into his mind and forces the subject to provide the information, breaking down the power of reason. Narco-analysis is a Forceful and compelling entry into once world of privacy. Since the test is with a compelling nature and without the consent of the subject, we call it as rape of human mind.
2.1.1. Christian View on Torture
The human person is a creation of God. Every inch of the human body and every aspect of the human spirit come from God and bear witness to his handiwork. We are made in the image of God (Gen. 1:26-28). Human dignity (value, worth) comes as a permanent and ineradicable endowment of the Creator, to every person. Recognition of the intrinsic dignity of the human being requires a corresponding restraint in our behaviour toward all human beings. All human beings must be trained to see in every person the imprint of God’s grandeur. This should create in us a sense of reverence or even sacredness. Here, we say a human being sacred in God’s sight, made in God’s image, someone for whom Christ died. No one is ever subhuman or human debris.
According to the Catechism of the Catholic Church, “Torture which uses physical or moral violence to extract confessions, punish the guilty, frighten opponents, or satisfy hatred is contrary to respect for the person and for human dignity” (2297).
On the “pro” side of the argument, a few passages in Leviticus seem to speak in favour of harsh punishments, such as stoning. Some people take the inclusion of these verses as assurance that torture does not violate the moral law. However, that’s an inaccurate interpretation of Scripture, as the document “On the Interpretation of the Bible in the Church” published by Pontifical Biblical Commission makes clear:
It is not sufficient . . . that the Old Testament should indicate a certain moral position (e.g. the practice of slavery or of divorce, or that of extermination in the case of war) for this position to continue to have validity. One has to undertake a process of discernment. This will review the issue in the light of the progress in moral understanding and sensitivity that has occurred over the years.
The writings of the Old Testament contain certain “imperfect and provisional” elements (“Dei Verbum,” 15), which the divine pedagogy could not eliminate right away . . . .
Through the revelation of God’s love that comes in Christ, the New Testament sheds the fullest light upon these principles and values.[xlvi]
There is no specific New Testament teaching about torture, but Jesus’ moral principles are in effect at all times stand against torture: Love your enemies (Matthew 5:44), turn the other cheek (Matthew 5:39), do unto others as you would have them do unto you (Matthew 7:12), whatsoever you do to the least of My people, that you do unto Me (Matthew 25:40).
In point of fact, there is nothing to support torture in the entire New Testament. Instead, the moral framework of the gospel compels us to mercy and compassion, seeing Jesus even in those who spit upon us and wish us dead.
An inchoate sense of the proper reverence due to every human person makes its way even into “secular” and public codes, such as international legal documents. These texts may not be able to say why human beings should be treated with respect but they know that this is in fact a binding obligation. Christians can say why: because this “detainee,” even this “terrorist,” if he is one, is a child of God, made in God’s image.
A moral commitment to the dignity of the human person is sometimes fleshed out in terms of human rights. Just because they are human, on this view, people have rights to many things, including the right not to be tortured. An implication of a biblical understanding of human dignity is, at least, the existence of a set of human rights. Among the most widely recognized of these in both legal and moral theory is the right to bodily integrity; that is, the right not to have intentional physical and psychological harm inflicted upon oneself by others. The ban on torture is one expression of the right to bodily integrity.
Some people argue that the defensive interrogatory torture (and only this kind of torture) may be morally legitimate under very carefully qualified conditions, but the principle of human dignity and its correlated rights remains a transcendently important reason to resist the turn toward torture. And because rights correspond with obligations, all of us who recognize the human right not to be tortured have an obligation to protect those rights.
2.1.2. Torture and Desired Results
Torture has made a renewed comeback in today’s conflict-ridden world. However, sophisticated intelligence agencies know that torture is not only a violation of human rights; it also does not yield the desired results. This is a strong utilitarian argument against torture; i.e., there is no scientific evidence supporting its effectiveness. The lack of scientific basis for the effectiveness of torture as an interrogation techniques is summarized in a 2006 Intelligence Science Board report titled “Educing Information, Interrogation: Science and Art, Foundations for the Future”[xlvii]. A person who is being tortured usually admits to any crime attributed to him or her and gives information that the torturer would like to hear.
Narco-analysis suffers from the same problem. In the test the interrogator is required to ask questions in the same way that the torturer asks questions. There is enough scientific evidence to show that a person under the effect of a drug often plays along with the suggestions made by the interrogator. The machines used for lie detection have also often led to the wrong conclusions. In 2005, in a case in the US, the company manufacturing a lie detection machine, the Computer Voice Stress Analyser, was sued by the accused and forced to make a hefty payment as compensation to settle the case outside the court.[xlviii]
2.1.3. Narco-analysis as a Method of Torture
We believe that Narco-analysis’ inhibiting of rational faculties and its potential medical side-effects effectively reduce Narco-analysis to nothing but a form of torture.
The UN definition of torture has four components: it produces physical/mental suffering and is degrading; it is intentionally inflicted; it is intended for purposes such as getting information, confessions, etc; and it is inflicted by an official. Narco-analysis satisfies all four. In India, video clips of the actual Narco-analysis are telecasted through mass media, when the same is not even admissible as evidence in court! This is also a form of torture. According to P. Chandra Sekharan, narco-analysis and related tests are merely replacing physical third degree interrogation with a psychological third-degree mode.[xlix]
The Inter-American Convention to Prevent and Punish Torture has defines torture more broadly than the UN Convention. It includes as torture “the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish”[l]
Freedom from torture is a fundamental human right that must be protected under all circumstances. Narco-analysis is a method of torture and is an atrocious violation of human dignity. It dehumanizes both the victim and the perpetrator. The pain and terror deliberately inflicted by one human being upon another, during the process Narco-analysis, leave permanent scars: spines twisted by beatings, skulls dented by rifle butts, recurring nightmares that keep the victims in constant fear.
2.1.4. Utilitarian Argument in favour of Narco-analysis
There are arguments in favour of torture which are essentially utilitarian in nature. The holders of this view believe that it is the best means available to protect the entire people of country to torture a few people. Thus we achieve the greatest good for the greatest number of people. E.g., a terrorist is captured, if he is subjected to Narco-analysis and the complete details on various terror plots are extracted from him that will be a great benefit for the entire society.
It is relevant to mention the observation made by Justice Krishna Iyer a great champion of Human Rights especial of accused and under trial prisoners; in Nandini Sathpathi’s case that “More than human dignity of accused is involved; the Human personality of others in the society must also be preserved. Thus the values reflected by the privilege are not the sole desideratum; society’s interest is of equal weight.”[li] The observation of eminent Jurist Sri. Fali Nariman, so far as right to salience is concerned, is reproduced below
It is time that we recognise the right of silence during a trial is not really a right, but a privilege and although every accused has a right to be presumed innocent till he is proved guilty, in terrorist related and other grave crimes the accused has an obligation to assist the discovery of truth.[lii]
The above two views can be seen from a utilitarian perspective. Utilitarianism is a deeply flawed moral theory, as has been shown by many. In emphasizing intrinsic human dignity, and concerns about both personal and national character. The greatest gain promised by the resort to torture is that it might extract information from suspects that would otherwise be unavailable. In the most sensational and widely discussed scenario utilitarians argue strongly that the torture of one terrorist at a pivotal moment could in turn save thousands of lives, and thus it must be permitted.
There are abundant evidences that people will say anything under torture, just to stop the pain. It is not just that they will be intentionally deceptive, but even more that after sufficient torture they may lack the mental ability to distinguish between truth and falsehood or to convey the truth. If the goal of torture is to extract critical information, these problems are obviously profound.
Sometimes the consequences of Narco-analysis are worse than intended, as when victims die prematurely due to hight dosage of the Truth Serum. From a utilitarian perspective the main problem here is that a dead person cannot give you any information whatsoever. And, of course, as news of deaths trickle out, moral outrage scandalizes the families and communities of the persons who have died in custody, and general world opinion.
We cannot accept the utilitarian argument in favour of Narco-analysis based on following grounds: First of all it is a utilitarian argument, not a moral argument. The information extracted using torture on the individual is unreliable. Torture violates human rights. The use of torture always blows back into the society that uses it. Torture must end because in the collective consciousness of humanity it is seen as evil, as destructive of common human bonds, a universal anti-moralism that eats into the very core of spirit and soul, and antithetical to the communalistic ethos of men and women striving together to survive in the world.
2.2. Narco-analysis: a Therapy for Patients not a Test for Criminals
Many and diverse are the methods that have been used in exploring the meanderings of the neurotic mind. In the early days of psycho-analysis Freud employed hypnosis in overcoming the resistance of his patients, and, later on, in his dream analysis utilized the recurrent narcosis of natural sleep. However, the methods of psycho-analysis and all its derivatives are intricate and require considerable skill, time, and special training. Since 1929, research in the use of drugs as an aid to gaining insight into and rapport with patients suffering from mental and nervous illness has been in progress.
2.2.1. Narco-analysis in the War Zone
During the years 1950-54, 78 patients were treated with Narco-analysis in the psychiatric department of Fredericksburg Hospital.[liii] The reason why this method was more infrequently used during the later years is the impression that the value of Narco-analysis both as a means of diagnosis and of therapy has been overrated. The reasons for beginning this treatment were the numerous excellent reports on the effect of Narco-analysis in cases of acute war neuroses during the Second World War, published by Sargant & Slater, Wilde and Grinker & Spiegel. After the war there were several more developments in its use as an aid in psychoanalysis, and its use in the treatment of psychosomatic illnesses. [liv]
During the Second World War in many hospitals, a full-time program in hypnotherapy for battle trauma cases was developed. Symptoms included severe anxiety, phobias, conversions, hysterias, and dissociations among Soldiers are treated. Many hypnoanalytic techniques were used, for free expression and consequent release of previously repressed emotions. The methods prevalent during the time were hypnosis and hypno-analysis.
It is quite interesting to note the words of Charles Burns, a psychiatrist, written in the Correspondence Section of British Medical Journal.
In cases of massive amnesia, where hypnosis has failed, Pentothal has given me results which would otherwise have taken many weeks. I have also found it of use in confirming one’s impressions of the personality type; the character traits are shown up in an exaggerated light, particularly the inflated egoistic types, and the patient is the more convinced out of his own mouth.[lv]
J. F. Wilde writes in British Medical Journal,
I have found intravenous sodium pentothal of assistance in (1) hysteria in its various manifestations; (2) anxiety states; (3) the after-effects of head and spine injuries; (4) borderline psychoses, mental deficiency, and epilepsy when the diagnosis was in doubt; and (5) simulation and malingering…[lvi]
….It will have been noted that a great number of these so-called war neuroses when subjected to narco-analysis revealed hitherto unsuspected data. In many of them the hidden worries brought to light had nothing whatever to do with the war, the trauma experienced in fighting being only the precipitating factor in predisposed subjects. Patients are often more ready to talk of their war experiences than they are to confide their personal and domestic worries. But it is usually the revelation of the things they least want to talk about that brings relief of neurotic symptoms.[lvii]
The success rate of Narco-analysis with respect to other psychiatric treatments was high. Many of the patience came fit to go back to duty; many were placed in various civil posts. Still, according to J. F. Wilde, Narco-analysis with intravenous barbiturates is not a method which at present is universally successful in overcoming resistance.[lviii]Even after the treatment, there were a few, in whom the complete removal neurotic symptoms came impossible.
2.2.2. Glitch of Deviated Objective
In the case therapeutic administration of Narco-analysis, it was a much more rapid approach to the factors hidden behind neurotic symptoms than any other form of psychotherapy. It was a sure method of getting a patient into a narcotic state without unpleasant after-effects. The physician – patient relation in a therapeutic administration of Narco-analysis is different from that of investigative administration of Narco-analysis. In the case of therapeutic administration, the patient is totally aware that the physician injects the barbiturates with a healing purpose. Where as, in the case of investigative administration, the accused is aware that the purpose of the barbiturates is to pull out the hidden information from the mind and sort of rape of mind. In the former, the cooperation of the patient with the physician is total and far-reaching, where the in the later, the attitude of the accused fluctuates. The result of Narco-analysis in the case of investigative purpose may not be as that of therapeutic purpose. Look at the confession of Wilde:
Narco-analysis is not in itself a means of producing a positive transference; it may often produce a negative one. If, however, a positive transference has already been established in early interviews it is not necessarily disturbed by the technique. Patients who have benefited often ask for repeated doses, and persuade their comrades to submit to the treatment.[lix]
In other words, since Narco-analysis as a treatment has different sessions with subsequent intervals, the success rate is high. Where as, in the case of Narco-analysis as a tool of investigation, once the negative transference is occurred, it affects the total investigation process. Methods of eliciting truth have long proved problematic. Truth drugs tend to make suspects babble as much falsehood as truth. Good liars those who have given training to lie may repeat the same lie during Narco-analysis.
2.3. Dubious Scientific Value of Narco-analysis
To claim Narcoanalysis as a ‘scientific test’, it should be subjected peer review and should be acknowledged at least by the scientific community. As early as in 1954, John McDonald, who as a psychiatrist for the District Courts of Denver, observed that “suspects subjected to Narcoanalysis sometimes confessed to crimes they could not have committed or continued to practise deceit”. [lx] For ethical reasons even the psychiatrists are advised against performing Narcoanalysis when the examination is requested as an aid to criminal investigation.
The reliability of the practice has been questioned by leading psychiatric and forensic experts.[lxi]
P. Chandra Sekharan, one of India’s foremost and most respected forensic experts, has said, “even under best conditions, they will elicit an output contaminated by deception, fantasy, garbled speech, etc”. His research paper gives examples of people under narcoanalysis, one who claimed to have a child that did not exist, another who threatened to kill someone who had already been dead for over a year, and a third who confessed to robbing goods he had just bought. A paper for the CID by the Superintendent of Police M. Sivananda Reddy concurs, underlining the “baffling mixture of truth and fantasy in drug-induced output”.[lxii]
The correct dosage of barbiturates depends on the physical condition, mental attitude and will power of the subject; again if the subject has used/abused intoxicants and other narcotics, a degree of “cross-tolerance” could take place. Therefore, it is very difficult to find out and apply correct usage of truth serum to the subject.
John MacDonald has had extensive experience with narcoanalysis, says that drug interrogation is of doubtful value in obtaining confessions to crimes. Criminal suspects under the influence of barbiturates may deliberately withhold information, persist in giving untruthful answers, or falsely confess to crimes they did not commit. The psychopathic personality, in particular, appears to resist successfully the influence of drugs.
MacDonald tells of a criminal psychopath who, having agreed to Narco-interrogation, received 1.5 grams of sodium amytal over a period of five hours. This man feigned amnesia and gave a false account of a murder. “He displayed little or no remorse as he (falsely) described the crime, including burial of the body. Indeed he was very self-possessed and he appeared almost to enjoy the examination. From time to time he would request that more amytal be injected.”[lxiii]
MacDonald concludes that a person who gives false information prior to receiving drugs is likely to give false information also under narcosis, that the drugs are of little value for revealing deceptions, and that they are more effective in releasing unconsciously repressed material than in evoking consciously suppressed information.
Another psychiatrist known for his work with criminals, L. Z. Freedman, gave sodium amytal to men accused of various civil and military antisocial acts. The subjects were mentally unstable, their conditions ranging from character disorders to neuroses and psychoses. The drug interviews proved psychiatrically beneficial to the patients, but Freedman found that his view of objective reality was seldom improved by their revelations. He was unable to say on the basis of the narco-interrogation whether a given act had or had not occurred. Like MacDonald, he found that psychopathic individuals can deny to the point of unconsciousness crimes that every objective sign indicates they have committed.[lxiv]
F. G. Inbau, Professor of Law at Northwestern University, who has had considerable experience observing and participating in “truth” drug tests, claims that they are occasionally effective on persons who would have disclosed the truth anyway had they been properly interrogated, but that a person determined to lie will usually be able to continue the deception under drugs.[lxv]
The two military psychiatrists who made the most extensive use of narcoanalysis during the war years, Roy R. Grinker and John C. Spiegel, concluded that in almost all cases they could obtain from their patients essentially the same material and give them the same emotional release by therapy without the use of drugs, provided they had sufficient time.[lxvi]
Narco-analysis is a test which affects brain, and by altering the process of the brain, the so-called truth extraction is made. Although, medical science has advanced a lot in its understanding of the brain but, by all accounts, we still have more imperfect empirical understanding and do not have full mastery over the brain’s complexities. We can easily assume, therefore, the alteration of the process human brain is a tedious task and it may not be a successful to control the brain of someone with help of some drugs.
The essence of these comments from professionals of long experience is that drugs provide rapid access to information that is psychiatrically useful but of doubtful validity as empirical truth. The same psychological information and a less adulterated empirical truth can be obtained from fully conscious subjects through non-drug psychotherapy and skillful police interrogation.
The salient points that emerge from this discussion are the following. No such magic brew as the popular notion of truth serum exists, i.e, the information extracted through Narco-analysis need not be true. The barbiturates, by disrupting defensive patterns, may sometimes be helpful in interrogation, but even under the best conditions they will elicit an output contaminated by deception, fantasy, garbled speech, etc. A major vulnerability they produce in the subject is a tendency to believe he has revealed more than he has. It is possible, however, for both normal individuals and psychopaths to resist drug interrogation; it seems likely that any individual who can withstand ordinary intensive interrogation can hold out in narcosis. The best aid to a defence against Narco-interrogation is foreknowledge of the process and its limitations. There is an acute need for controlled experimental studies of drug reaction, not only to depressants but also to stimulants and to combinations of depressants, stimulants, and ataraxics.
2.4. Narco-analysis and Daubert Standard
The misuse of scientific evidence was a serious problem for many decades. No one is really sure what the new test is all about. For example, Narco-analysis came in to existence and widely used for therapeutic and investigative purposes, all over the world. On each scientific experiment and test there may be varying observation from the part of experts. How a test can be proven valid and efficacious? This leads to certain standards that must be promulgated by the authority and must be observed by the members of the community. Daubert Standard is one among such standards.
2.4.1. Reliability of Narco-analysis
Ever since the first reported use of criminal Narco-analysis in 1922, the process has been under the scanner with absolutely unflattering results. It is no longer used for therapeutic purposes anywhere in the world though in the 1930s it was used for psychotherapy. Narco-analysis was later extensively experimented with by the US armed forces and the intelligence agencies, especially around the time of the World Wars. However, so far as getting to the truth is concerned, even they did not find Narco-analysis a great success.
The Central Intelligence Agency (CIA[lxvii]) of America has conceded that all that these drugs could do is lower the initial resistance but what is revealed during the interview could well be “psychotic manifestations… hallucinations, illusions, delusions or disorientation”. Furthermore, the CIA conceded at the 1977 U.S. Senate hearings that “no such magic brew as the popular notion of truth serum exists”.[lxviii]
The studies conducted in the area have also concluded that the person might start talking more uninhibitedly, but that he would speak the truth is certainly not certain. Narco-analysis, thus, takes away the stops off one’s mind and whatever is on the surface of the mind gushes out. This, obviously, does not mean that all of it is true because human beings do not always think of the true, concrete and actual facts but also about dreams, wishes and fantasies. There can be a situation when after intense interrogation, all that the person has on his mind is the crime and might also start associating himself closely with the thoughts and feeling of the interrogator about the crime. In such a situation if the person is subjected to Narco-analysis, his statements might start reflecting the interrogators thoughts inextricably mingled with his own thoughts, the true facts and the images that cropped up in his mind during the investigation. This could mislead the investigation and may also lead to miscarriage of justice in part or in whole. The courts across the world are aware of this position. Therefore, in order to judge the legal admissibility of scientific evidence, scientific study and, in particular, expert testimony the Supreme Court of the United States evolved what has now come to be known as Daubert Standard in 1993.
2.4.2. Daubert Standard
Daubert Standard is a legal precedent set in 1993 by the Supreme Court of the United States in Daubert v. Merrle Dow Pharmaceuticals, 509 U.S. 579 (1993). Daubert motion is brought in before or during trial for the exclusion of the testimony of an expert witness, who, in the opinion of those raising the objection, is either not an expert witness or has used questionable means to obtain the information or the inference he draws are based largely on speculation. According to the US Supreme Court, for any scientific evidence to be of use in legal proceedings there are four essentials to be satisfied. These are:
1. The theory or technique must be falsifiable, refutable, and testable.
2. It should have been subjected to peer review and publication.
3. Its potential error rate should be known and also the existence and maintenance of standards concerning its operation.
4. The theory and technique should also be generally accepted by a relevant scientific community. [lxix]
Now, as we already know that Narco-analysis is not considered to be a reliable science when it comes to getting the truth out of a suspect. At best it can make the person talk, nothing more. However, the authorities and some of the experts involved vouch for its reliability, but that cannot supply the requirement of peer review and publication. The specific methods being used at Forensic Science Laboratory, Bangalore have neither been peer review, nor has it data been published. So far as Narco-analysis generally is concerned, those who have been using it for decades now (CIA etc.) have categorically stated that the method is far from exact and quite unreliable for the purpose of getting the truth from a person. [lxx] Therefore, there is no question of its being ‘generally accepted by a relevant scientific community’. On the contrary many experts, like Dr. P. Chandra Sekharan, do not even consider Narco-analysis a science and call narcoanalysis a “yesteryear’s barbarism and violation of human rights.[lxxi]
Therefore, the position is that Narco-analysis is gaining currency and judicial acceptance despite that it is a doubtful ’science’ and is considered highly unreliable. Besides, its constitutionality is far from settled and from the look of the things it seems that it may not sail through a rigorous constitutional scrutiny. Moreover, Narco-analysis is weak vis-à-vis human rights and also increases the possibility of a gross miscarriage of justice. In such a situation we need to do a serious rethink about whether or not we want it to be a part of our crime investigation technique, which it is fast becoming. Rushing things in this regard could be disastrous.
2.5. Scope for Abuse
If Narco-analysis is legalized and can be used in some extra-ordination situations such as terrorists, then there arises a chance of abuse. The main argument on the scop of abuse is, how the extra-ordination situation will be defined and how this will be exercised. By analysing a extra-ordinary situation namely Ticking-bomb Scenario, an analysis on the efficacy of Narco-analysis is followed.
2.5.1. Ticking-bomb Scenario
The ticking-bomb terrorist case argument has also cropped up frequently in the media after the 9/11 attacks. It has been championed by Harvard Law School professor Alan Dershowitz, who argues for legitimising torture in select scenarios, for example when a hypothetical bomb is waiting to explode.
IN 1995, the police in the Philippines tortured Abdul Hakim Murad after finding a bomb-making factory in his apartment in Manila. They broke his ribs, burned him with cigarettes, forced water down his throat, then threatened to turn him over to the Israelis. Finally, from this withered and broken man came secrets of a terror plot to blow up 11 airliners, crash another into the headquarters of the Central Intelligence Agency and to assassinate the pope.[lxxii]
According to Alan M. Dershowitz, “It took what is called ‘torture lite’ and no lethal torture to break him down and reveal truthful information that may have saved many lives.”[lxxiii] In this line Narco-analysis may be one of the resources to extract information from the accused. When reviewing Alan Dershowitz’s book, Richard Posner, a judge of the United States Court of Appeals for the Seventh Circuit, wrote in the book review section of The New Republic, September 2002 that
If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used – and will be used – to obtain the information. … no one who doubts that this is the case should be in a position of responsibility.[lxxiv]
The above views support the use of Narco-analysis in a so-called ticking bomb scenario, but there are even counter arguments on these views.
2.5.2. Arguments against Selective Torture
Some human rights organizations, professional and academic experts, and military and intelligence leaders have absolutely rejected the idea that torture is ever legal or acceptable, even in a so-called ticking bomb situation. 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. After all the torture methods like Narco-analysis used to winkle out the information is not scientifically reliable.
2.6. Dangerous Side-effects
It is believed that sodium pentothal, if administered improperly, could lead to coma and even death. The possible life-threatening side effects of pentothal include harmful effects on blood circulation and breathing, apnoea (stopping of airflow during sleep) and anaphylaxis (a rapidly progressing, life-threatening allergic reaction of the immune system). According to experts, its effects on the central nervous system may lead to retrograde amnesia, emergence delirium, besides many other side effects.
One of the accused in the Aarushi-Hemraj murder case has alleged that he has developed hearing problems after Narco-analysis tests were conducted upon him by the Central Bureau of Investigation (CBI) while investigating the case. Rajkumar, arrested by the CBI on June 27 on the basis of his Narco-analysis test report, has told this to his lawyer from Nepal. His lawyer, Naresh Yadav, said, “Rajkumar called me last week and said a doctor in Nepal said he had the problem because of the Narco-analysis tests.”[lxxv] Dr Sudhir Gupta, professor, Department of Forensic Medicine at the All India Institute of Medical Sciences (AIIMS), said, “Narco-analysis has several side effects like hearing problem, effects on the brain, heart and respiratory system.” [lxxvi]
2.7. Conclusion
Efficacy of Narco-analysis is challenged from very many perspectives and directions and the test is indeed eroding the very ethical core of human life. To conclude, it is hard to accept the efficiency and efficacy of Narco-analysis from the above discussion. First of all there are evidences that the test is not reliable. The test cannot be accepted according to “Daubert Standard”. Even if it is allowed to be conducted on some accused, there are chances of misuse in various respects. It is totally inhuman and arrogant to conduct such a test on human persons where it has lot of side effects. According to few people, since Narco-analysis is conducted by a Clinical Psychiatrist, there are chances that he may use some hypnotic method and divert the mind of the subject and with the help of some suggestions, the required answer can be accomplished. That is with the help of these proper suggestions, the accused may accept the allegation and may admit the charges, for the subject is in a very vulnerable trance-like state. This argument deny the reliability and dependability of the test. Although the competence and effectiveness of Narco-analysis is challenged, it has high regard to analyse Narco-analysis from an ethical perspective. Following chapter of this research paper is an attempt to evaluate Naro-analysis based few import ethical principles.
3. NARCO-ANALYSIS AND ETHICAL PRINCIPLES
3.0. Introduction
The interface between criminal justice and science & technology raises two areas of concern, namely, how the enormous resources of science and technology can be used to solve the problems and challenges of crime on the one hand, and at the same time, there is a task of sustaining human dignity and rights. According to Madhava Menon Committee Report,
There is a strong case for the police being equipped with the latest technology-based equipment to achieve better mobility, communications, audio visual aids and other scientific support systems to improve its professional efficiency. This can help improve capabilities of the police in apprehension of criminals, curtail unnecessary arrests, reduce response time, avoid use of third degree methods in detection and interrogation, improve prospects of proof through scientific evidence and enhance standards of preventive policing in a human rights friendly manner.[lxxvii]
Some of these high-tech tools are DNA fingerprinting, cyber forensics, Narco-analysis, brain-mapping etc. At times when human mind is the only place to gather conclusive evidence relating to a crime, Narco-analysis is said to be the best resort. But what makes conducting the test problematic is the conclusiveness of the test and the human right concern. This chapter analyses Narco-analysis in the light of few ethical principles such as human dignity, principle of self-incrimination and principle of beneficence.
3.1. Human Dignity
Catholic theology has always had to address the question of the human person’s status within creation. Scripture itself makes unavoidable serious reflection on this problem. The opening chapter of Genesis, for instance, relates that man was created “in God’s image” and that upon his creation God saw that all of creation was “very good.” The prologue to the Gospel of John further reveals that while creation occurred through God’s eternal Word, the Word also “became flesh and dwelt among us, full of grace and truth.” Taking its bearings from such scriptural statements, Catholic theology traditionally has described the human person’s place in creation, using terms borrowed from the broader context of Catholic cosmology. To understand the human person, one must first view him in relation to God and only then in relation to the rest of creation. Such a comparison reveals that the human person occupies a privileged place within the created order. The only temporal creature created in God’s image, the human person has been elevated to a position somewhere above the brutes and somewhere below the angels, but over the past century, the Catholic Church increasingly has emphasized the dignity of the human person.
Dignity, or the desire to maintain ones composure, integrity, and respect, even in the face of adversity, is a hard-sought goal, striven for throughout history. According Oxford Dictionary, dignity is the state or quality of being worthy of honour or respect. Dignity is derived from its root digin means worthy, merited[lxxviii]. “Dignity is a term used in moral, ethical, and political discussions to signify that a being has an innate right to respect and ethical treatment.”[lxxix] It is an extension of enlightenment-era beliefs that individuals have God-given, inviolable rights, and thus is closely related to concepts like virtue, respect, self-respect, autonomy, human rights, and enlightened reason. Dignity in humans involves the earning or the expectation of personal respect or of esteem. To esteem persons or things means to assign to them a high value.
In modern politics, dignity is used to signify that all human beings possess intrinsic worthiness and deserve a basic level of respect, without regard to age, gender, health, social or ethnic origin, social status, political ideology, religious beliefs or practices, or other elements of personal history.[lxxx] This concept has been extended from purely political rights to cover issues resulting from technological advances in biomedical issues.
3.1.1. Human Dignity from a Philosophical Perspective
At the philosophical level, following Kant, dignity has been used to indicate that persons should always be treated as ends in themselves and never merely as means. “Act in such a way as to treat humanity, whether in your own person or in that of another, always as the end, never merely as the means….”[lxxxi] Kant presents ‘dignity’ as exactly the opposite of ‘price’: while ‘price’ is the kind of value for which there can be an equivalent (roughly economic value), ‘dignity’ makes a person irreplaceable. Therefore, dignity can be explained as a requirement of non-instrumentalization of persons. Pico Della Mirandola offered an idea of dignity in the Oration on the Dignity of Man that is based on a Neo-Platonist framework of man’s role in the universe. Since man occupies the highest place in the chain of being in comparison with other creatures, he has the unique ability to learn from all the other entities in the universe.[lxxxii] This confers man free-will as he is able to choose actions based upon the knowledge that he can acquire. It is this ability to act with moral autonomy due to man’s unique place in the universe by which humanity can have dignity.
Pico’s idea of human dignity moves one step further than Kant in the direction of pure immanence. Human beings are not conceived as having any particular destiny in the world, even one that is dictated ‘from within’, by their own reason. They are absolute masters of themselves, both on the individual and the collective (species) levels.[lxxxiii]
3.1.2. Human Dignity from Theological Perspective
In Gaudium et Spes, the Vatican II Council Fathers demonstrate that human dignity arises from an understanding that the human person was made in the image and likeness of God. “So God created man in his own image, in the image of God he created him; male and female he created them” (Genesis 1:27). Being in the image of God, the human person occupies a unique place in creation. God established him in his friendship. Of all visible creatures only the human person is “able to know and love his creator” (GS 12 #3), and he and she alone are called to share, by knowledge and love, in God’s own life. It was for this end that they were created, and this is the fundamental reason for their dignity. Being in the image of God the individual possesses the dignity of a person, who is not just something, but someone. They are capable of self-knowledge, of self-possession and of freely giving themselves and entering into communion with other persons.
God Himself emerges as the author of human dignity: He promotes it and conserves it; He summons men and women to higher dignity relentlessly through the Word-made-flesh and His Holy Spirit. Hence, wherever anything that promotes human dignity is found, God is in some way present. Therefore the Church is not opposed to man and woman’s temporal activities, but on the contrary promotes and encourages the human commitment to the stewardship of the creatures. Culture, technological progress, human solidarity, community, etc., are willed by God by the very fact that He created men and women in His image.
The concept of human dignity is the starting point and central concern of Catholic thinking about human rights. Other Catholic social teachings draw their inspiration from this concept. The Catholic Church believes that each person is equal in dignity and has equal rights, for each person is created in the image and likeness of God. Human dignity is inalienable: a person does not lose their dignity through any means – e.g., disability, age, lack of success, poverty, religion, race, gender, or even when she is suspected for involving in a crime. The Catholic Church is driven by an understanding that each and every person is a child of God with a dignity that nothing can erase. It therefore supports the sanctity of human life without exception, even the lives of those who have inflicted great evil on other people.
3.1.3. Human Dignity from Social Perspective
The Catholic Church proclaims that human life is sacred and that the dignity of the human person is the foundation of a moral vision for society. A just society can exist only when it respects the dignity of the human person[lxxxiv]. This belief is the foundation of all the principles of our social teaching. In our society, human life is under direct attack from very many issues. The value of human life is being threatened by increasing use of the death penalty, euthanasia, stem cell research, abortion etc. The dignity of life is undermined when the creation of human life is reduced to the manufacture of a product, as in human cloning or proposals for genetic engineering to create “perfect” human beings. We believe that every person is precious, that people are more important than things, and that the measure of every institution is whether it threatens or enhances the life and dignity of the human person.
Society exists to promote the good of the human person, individually and collectively. Conversely, it is by serving fellow men and women in society that a person grows and becomes truly human. This means that no human society should use the human persons which constitute it as instruments. They must be treated as persons. Human dignity requires that neither the social governing system nor the judiciary should suppress human persons. They should aid the person to attain his destiny by helping him and her to achieve such things they cannot attain themselves.
In order to develop truly as a human person in society, the individual requires freedom and responsibility. Freedom is an extension of human dignity. It is the highest sign of the divine image of the human person. In respect to God, it appears as freedom of choice (moral); in respect to civil authorities and the Church, it is religious freedom; in respect to rights, it is fundamental human rights; in respect to duties, it is called civil obligations, and so on. The basic affirmation in all the different freedoms seems to be that the human person should not be subjected to any external force, constraint, interference or hindrance in the performance of his or her human activities.
“Human dignity is a clear value of our constitution and is not to be bartered away for mere apprehension entertained by interrogation officials.”[lxxxv] Article 10 (1) of ICCPR[lxxxvi] makes it clear that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.[lxxxvii]
3.1.4. Narco-analysis and Human Dignity
In contrast with this reverence for life and human dignity, Narco-analysis undermines society’s respect for human life and contributes to a culture of scandal and non-reputation. In the process of Narco-analysis, once the confession of the suspected person is recorded into a disk and will be submitted along with the FIR to the court. Once the charge sheet is made and submitted in the court, it is a public property and the parties involved in the case may get a copy of these documents on request. There arises a possibility of the confession of an individual on a particular incident, which is made under the influence of the so called truth serum that is scientifically not reliable and a third degree method of psychological torture, to reach into the hands of public. In the context of India, TV Channels are making these video graphs to increase the sensitivity of the issue.
We come across with two-fold problems which affect the dignity of the person in Narco-analysis. First of all, the process of Narco-analysis itself is harassment and maltreatment to an individual, secondly as part of Narco-analysis the revelation made by the person in a semi-conscious state, if it is broadcasted through mass media[lxxxviii], in some cases, destroy the reputation and moral fortitude of the individual. The victim looses his/her right to be respected. As it is seen in the first chapter, the victim of Narco-analysis is instrumentalized for the sake of finding some truths, where the method is not all scientific and reliable. During the process of Narco-interrogation, the accused has not freedom to use his reason. The person is denied with the right of freedom and expression and therefore it is a violation against human dignity. Every inch of the human body and every aspect of the human spirit come from God and bear witness to his handiwork, but Narco-analysis violates all these aspects.
3.2. Human Integrity
The understanding of integrity which we offer to this modern world has two key dimensions. The first is integrity as wholeness, interconnectedness, and interdependence. The second is accountability and moral responsibility. In this research paper, integrity as wholeness is analysed. Each human person is intended to possess certain powers or attributes. If any of those are taken away, this is a reduction of human integrity. A normal human body possesses four limbs. If one of those is removed, the integrity of the human body has been damaged. Likewise, the human mind is intended to use reason; removing this ability is a reduction in integrity. The integrity of a person contains not only in physical integrity, but integrity in other aspects and in dimensions.
A violation of human integrity would be a morally avoidable loss of integrity. If the progression of a disease threatens a human life, a doctor may choose to amputate a limb. Although this is a loss in integrity, it does not amount to a moral violation, if the doctor was faced with an unavoidable choice between life and a limb (i.e. between a greater integrity and a lesser). But someone simply choosing to amputate their limb (because, say, it will make them an object of sympathy to others) is a violation of human integrity.
3.2.1. Church View on Human Integrity
Human life is sacred. The dignity and integrity of the human person is the foundation of a moral vision for society. Direct attacks on innocents damaging their personal integrity, are never morally acceptable, at any stage or in any condition. Veritatis Splendor states:
Reason attests that there are objects of the human act which are by their nature “incapable of being ordered” to God, because they radically contradict the good of the person made in his image. These are the acts which, in the Church’s moral tradition, have been termed “intrinsically evil” (intrinsece malum): they are such always and per se, in other words, on account of their very object, and quite apart from the ulterior intentions of the one acting and the circumstances. Consequently, without in the least denying the influence on morality exercised by circumstances and especially by intentions, the Church teaches that “there exist acts which per se and in themselves, independently of circumstances, are always seriously wrong by reason of their object”. The Second Vatican Council itself, in discussing the respect due to the human person, gives a number of examples of such acts: “…whatever violates the integrity of the human person, such as mutilation, physical and mental torture and attempts to coerce the spirit; whatever is offensive to human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution and trafficking in women and children; degrading conditions of work which treat labourers as mere instruments of profit, and not as free responsible persons: all these and the like are a disgrace, and so long as they infect human civilization they contaminate those who inflict them more than those who suffer injustice, and they are a negation of the honour due to the Creator”[lxxxix]
The Instruction by the Congregation for the Doctrine of the Faith namely Donum Vitae states that
The inalienable rights of the person must be recognized and respected by civil society and the political authority. These human rights depend neither on single individuals nor on parents; nor do they represent a concession made by society and the state; they belong to human nature and are inherent in the person by virtue of the creative act from which the person took his origin. Among such fundamental rights one should mention in this regard every human being’s right to life and physical integrity from the moment of conception until death[xc]
In the speech addressed to members of the World Medical Association on 29 October 1983 Pope John Paul II states that “God alone is the master of human life and of its integrity.” Church always stands for human integrity in all the respects. Whatever act against human rationale, name, fame, reputation, destructs human integrity. Integrity of human life is intrinsic to the whole Christian life and the integrity of the Christian person in faith and morals as well as in truth and freedom is a fundamental option.
3.2.2. Principle of Totality and Integrity
The view of Sanctity of Life calls for respect for the life. It includes protection and promotion of human life. Respect for the life requires not only the bodily integrity but it look for integrity as a person. The Principle of Totality and Integrity could be stated as follows:
The good of the whole human person should be the measure of the use, care, and preservation of its particular function such that lower functions may be sacrificed to higher functions only for the better functioning of the whole, compensating as far as possible for the proper value of each sacrificed function. However, one should never destroy the basic capacities except when it is necessary to preserve life.[xci]
Amputation of a particular organ can be accepted only if it is the locus of disease and the entire life of a person will be in danger if the amputation is not done. For example removal or a cancers prostate gland can be accepted in this respect. But the act which affects the reason of a person, reputation of an individual in the society, and the psychological stress and mental agony is a violation of the principle of totality and integrity.
3.2.3. Narco-analysis and Human Integrity
Narco analysis is an attack directed at our minds. Since all crimes take place in our minds before they are executed, the utilitarian argument is that by investigating an accused’s mind, with or without consent, would help investigation process.
Narco-analysis involves the involuntary injection of mind-altering drugs into one’s body; there necessarily arises a question of human integrity. The person is loosing his control over his mind and reaches in a position, where he cannot use his reason. In many respects this is a violation of personal integrity. First of all the process makes a mental stress pain to the subject. It is an intrusion into mental privacy and bodily integrity. It is a kind of mental persecution, for it disturbs the feelings of privacy. Through Narco-analysis, we are headed in the direction of mind control or a form of mind manipulation. The leap from drugging a person to probing his mind, to manipulating a person’s thought processes might appear a science fiction. Broadcasting of the Narco-analysis videos affects the name, fame and the reputation of the person in the society. In these respect, Narco-analysis is an act against the personal integrity of a human being.
3.3. Self-incrimination and Right to Silence
Self incrimination is the act of accusing oneself of a crime. It is essentially admitting to a crime, which can open the doors for prosecution to be brought against one. Self incrimination can occur through outside pressure forcing one into bearing testimony against oneself, or through voluntarily saying things to imply guilt.
3.3.1. Self-Incrimination from Biblical and Theological Perspectives
According to the O.T. scriptural passages, litigants are not allowed to remain silent (Exodus 22:10-11, 1 Kings 8:31-32). Anyone who does not plead guilty must swear to his innocence and pay the consequences if proven otherwise. Leviticus 5:1 demands testimony of all witnesses, including the accused:
If anyone sins in that he hears a public adjuration to testify and though he is a witness, whether he has seen or come to know the matter, yet does not speak, he shall bear his iniquity (Leviticus 5:1).
This Eighth Commandment statute stipulates that a witness to any crime must testify to that crime. The Eighth Commandment not only condemns false testimony, it demands truthful testimony.
As we analyse N.T. Scriptural passages, in the trial of Jesus, we can see in two occasions Jesus kept quiet in front of the interrogators namely the Chief Priest Caiaphas and the Governor Pilate (Matthew 26:63 and 27:14). This indicates a shift or a progress from the O.T. understanding of self incrimination. Since law is a living process, which changes according to the changes in society, science, ethics and so on, the shift took place in N.T. on self-incrimination can be corroborated.
The right to silence on the grounds of privileged communication is to a degree granted to pastors and doctors. The presupposition in both cases is the same. The statements or confessions made by a person to his pastor or doctor in the course of a formal or professional relationship are privileged communications, because the person in question is in effect confessing to God in the form of a ministering agent. Privileged communication rests on the presupposition of the religious function of pastor and doctor as God’s servants in the ministry of health (both spiritual and physical). A person’s relationship to a priest is thus not the property of the human agent but of God.
The Catholic Church’s Seal of Confession or Seal of Secrecy demands the same protection for priests:
In the “Decretum” of Gratian … we find … the following declaration of the law as to the seal of confession: “Deponatur sacerdos qui peccata penitentis pulicare praesumit.”, i.e., “Let the priest who dares to make known the sins of his penitent be deposed.”[xcii]
Canon 21 of the Fourth Council of the Lateran (1215), laid down the obligation of secrecy in the following words:
Let the priest absolutely beware that he does not by word or sign or by any manner whatever in any way betray the sinner: but if he should happen to need wiser counsel let him cautiously seek the same without any mention of person. For whoever shall dare to reveal a sin disclosed to him in the tribunal of penance we decree that he shall be not only deposed from the priestly office but that he shall also be sent into the confinement of a monastery to do perpetual penance
According to CIC C. 983 §1:
The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.
A priest or clergyman will in the course of his ministry often receive private information from members of his flock, which his priestly duty requires him to keep secret. The Church, therefore, shows excessive significance to the right of self-incrimination and it must be quite serious, when it is the cases, where clergy is involved.
3.3.2. Self-Incrimination and Civil Law
The privilege against self incrimination, in the civil law, applies to confidential communications between clients, their lawyers and third parties made for the dominant purpose of use in litigation or made for the dominant purpose of giving or receiving legal advice.
The origins of the right go back to objections against the inquisitorial proceedings of medieval ecclesiastical tribunals as well as the British Courts of Star Chamber. By the late 17th century, the maxim of nemo tenetur prodere seipsum – no man is bound to accuse himself – had been adopted by British common law courts and had been expanded to mean that a person did not have to answer any questions about his or her actions. The state could prosecute a person, but could not require that he or she assist in that process. The colonies carried this doctrine over as part of the received common law, and many states wrote it into their early bills of rights. Madison included it as a matter of course when he drafted the federal Bill of Rights.[xciii]
The main provision regarding crime investigation and trial in the Indian Constitution is Article 20(3). It deals with the privilege against self incrimination. In India, the privilege against self incrimination is a fundamental canon of Common law criminal jurisprudence. It has its equivalents in the Magna Carta, the Talmud, and the law of almost every civilized country. The Fifth Amendment of the US Constitution provides inter alia: “No person…shall be compelled in any criminal case, to be a witness against himself”[xciv].
The right against forced self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal Procedure (CrPC). In the CrPC, the legislature has guarded a citizen’s right against self-incrimination. S.161 (2) of the Code of Criminal Procedure states that every person “is bound to answer truthfully all questions, put to him by [a police] officer, other than questions the answers to which, would have a tendency to expose that person to a criminal charge, penalty or forfeiture”.
In India, it is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani[xcv] no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). In this case Sathpathy claimed that she had the right of silence by virtue of Article 20(3) of the Constitution and Section 161 (2) of CrPC and the interrogation by the police officer is a forcible intrusion into her mind and violates the right of silence. The Apex Court upheld her pleas.
The characteristic features of this principle are – the accused is presumed to be innocent, that it is for the prosecution to establish his guilt, and that the accused need not make any statement against his will.
These propositions emanate from an apprehension that if compulsory examination of an accused were to be permitted then force and torture may be used against him to entrap him into fatal contradictions. The privilege against self-incrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice.
3.3.3. Self-Incrimination and Narco-analysis
Narco-analysis is being promoted as an indirect means to over-ride the constitutional right to silence and the right against self-incrimination. The legal position of applying Narco-analysis as an investigative aid raises genuine issues like encroachment of an individual’s rights, liberties and freedom. Subjecting the accused to undergo the test, as has been done by the investigative agencies in India, is considered by many as a blatant violation of Art. 20(3) of the Constitution. It also goes against the maxim Nemo Tenetur se Ipsum Accusare that is, ‘No man, not even the accused himself can be compelled to answer any question, which may tend to prove him guilty of a crime, he has been accused of’. If the confession from the accused is derived from any physical or moral compulsion it should stand to be rejected by the court. By the administration of Narco-analysis, forcible intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence.
When a catholic priest is subjected to Narco-analysis, it raises lot of concerns with respect to the seal of sacrament of reconciliation. In the process of Narco-analysis, the confessions made by the accused is recorded and submitted in the court. There are chances that these confessions can be broadcasted through media. If such confession of a catholic priest includes some information, which are supposed to be kept as secret, it leads to many queries and concerns. First of all the seal of sacrament of confession will be broken and it is not with the knowledge of the priest, for he would be in a semi-conscious state during the time of confession. In the modern world, how the faithful can believe that their confessor won’t be subjected to Narco-analysis.[xcvi]
3.4. Ethical Principle of Beneficence
The principle of beneficence is one should act to further the welfare and benefits of another and to prevent evil or harm to that person. Traditionally, principle of beneficence is understood as the “first principle” of morality, the dictum “do good and avoid evil” lends some moral content to this principle. The principle of beneficence is a “middle principle” insofar as it is partially dependent for its content on how one defines the concepts of the good and goodness. The term beneficence connotes acts of mercy, kindness, and charity, and is suggestive of altruism, love, humanity, and promoting the good of others. In ordinary language, the notion is broad; but it is understood still more broadly in ethical theory, to include effectively all forms of action intended to benefit or promote the good of other persons. The language of a principle or rule of beneficence refers to a normative statement of a moral obligation to act for the benefit of others, helping them to further their important and legitimate interests, often by preventing or removing possible harms. The principle of nonmalificence in medical ethics is also goes hand in hand with principle of beneficence. Nonmaleficence is the warning, “Never do harm to anyone.”
3.4.1. Principle of Beneficence from Biblical Perspective
We can see lot of scriptural references for the principle of beneficence. The fifth commandment says, “Thou shalt not kill” (Exodus 20:13). In the Book of Leviticus, God tells his people “to love your neighbour as yourself” (Leviticus 19:18). Both the instructions seen in the O.T. are expressions of principle of beneficence in a wider sense.
The Beatitudes, recorded in the New Testament, are presented in a positive sense. The Golden Rule in the Sermon on the Mount, “So whatever you wish that men would do to you, do so to them” (Matthew 7:12), indicates the same principle. The two greatest commandments mentioned in the synoptics gospels hint also at the same principle of beneficence (Matthew 22:36-40, Mark 12:28-31, Luke 10:25-28). St. Paul taught us to respect the human body, for our bodies are temples of the Holy Spirit (I Corinthians 6:19).
A celebrated example of beneficence can be seen in the New Testament parable of the Good Samaritan. In this parable, robbers have beaten and left half-dead a man travelling from Jerusalem to Jericho. The actions of the Samaritan, who tends to his wounds and cares for him at an inn, are clearly beneficent and the motives are benevolent.
3.4.2. Principle of Beneficence and Medical Ethics
Traditional Medical Ethics involves the application of religious principles to patient care. The middle portion of the traditional Hippocratic Oath[xcvii] expresses the notion of principle of beneficence: “I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone…”[xcviii]
One of the principles of medical ethics is the doctor-patient relationship. Essential to this relationship is the element of trust. This relationship has been described by Paul Ramsey as a covenant similar to the pact between Yahweh and his people as recorded in O.T.[xcix] The patient trusts the physician to counsel him to make the right decision regarding his care, to ensure his privacy, and to be a patient advocate. The physician should be compassionate, truthful, and respect the personal dignity of the patient by giving him informed consent. He has to fulfil his traditional role as healer and protector of the patient’s life. The physician must evaluate whether any particular treatment or procedure is clinically indicated, and whether the procedure will provide benefit or undue burden to the patient, for the physician is supposed to do no harm to the patient.
Beneficence, in the medical ethics, refers to the traditional role of the physician as the Good Samaritan. The compassionate physician performs acts of charity, kindness, and mercy; comes to the aid of the injured, the sick, and the dying; and relieves suffering. Natural or comfort care, the offering of food and water and the maintenance of body temperature and cleanliness for the dying elderly patient is a form of beneficence, as well as comforting the patient through a loving presence, palliation, and prayer.
As the other side of the coin, along with the principle of beneficence, a physician is not supposed to do any harm to his patient. In other words, physicians by no means partake in any practice of torture. The World Medical Association of which the Indian Medical Association is a member, in its 1975 Tokyo Declaration not only prohibited doctors from participating in or assisting any kind of torture, but also made it mandatory to report it if they happened to examine a tortured person.
It now states that
Physicians shall not countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures, whatever the offence of which the victim of such procedure is suspected, accused or guilty, and whatever the victim’s beliefs or motives, and in all situations, including armed conflict and civil strife.[c]
Kenneth documents a recent statement of the American Medical Association that the “Physicians must not conduct, directly participate in, or monitor an interrogation with an intent to intervene, because this undermines the physician’s role as healer.”[ci] The American Psychiatric Association has also reiterated its long-held position against the participation in or assistance to interrogation by psychiatrists.
Physicians have a moral duty to fight against any order in violation of medical ethics. This tolerance of unethical conduct and collusion in human rights violations by physicians intensify the gravity of the situation, as willing participation is a sign of medicine providing increasing space to authoritarian tendencies in society.
3.4.3. Narco-analysis and Ethical principle of Beneficence
A doctor participating in Narco-analysis is participating in a psychological third degree procedure. The barbiturates, used in the Narco-analysis, affect higher brain centres generally and the drug depresses cell functions and disables the ascending (sensory) circuits of the nervous system. This is kind of mental and psychological torture towards the subject. The UN’s definition of torture[cii] has four components:
· it is an act causing severe physical and mental pain and suffering, that is
· intentionally inflicted
· for a certain purpose (information, confessions etc.), and
· carried out by an official actor.
When we analyse the process of Narco-analysis and UN’s definition of torure, we can see that the Narco-analysis in all the respects satisfies the UN’s definition of torture. As a result of the mind-altering effect of the drug, an innocent person may make a confession, or a machine may find his or her statement to be true or false; this is likely to lead to mental trauma for that person. Both the threat and the actual administration of narco-analysis are intentional and involve the participation of not only the police but also of doctors.
Chapter 2, regulation 6.6 of the Code of Medical Ethics (2) clearly mentions that the physician shall not aid or abet torture nor shall he/she be a party to either infliction of mental or physical trauma or concealment of torture inflicted by some other person or agency in clear violation of human rights.[ciii]
Although Narco-analysis is banned in United States, it was allegedly used against the terrorists, who are involved in attacking World Trade Centre on 11 September 2001, as part of interrogation.[civ] Luis Justo[cv] strongly criticise those who participating such in interrogations in the name of the “war on terror”. He specifically targets the “biscuit” teams[cvi], comprising psychologists, psychiatrists and other health workers, which operate in United States military prisons. These are similar to teams in India’s forensic laboratories. According to Justo, medical associations in United States have strongly spoken out against these unethical actions including Narco-analysis.[cvii]
If the physicians argue that they are participating because of a court directive, then why are they still taking the consent of the subject?[cviii] Does that not amount to rationalizing a coerced action without the free will of the subject? If a doctor conducts Narco-analysis just on the basis of a directive from the police or an investigating agency, isn’t the doctor violating the ethical principle of beneficence (all actions only for prevention of harm, removal of harm and for the provision of benefits) when the evidence gathered by Narco-analysis goes against the subject? A physician participating in the process of Narco-analysis, therefore, clearly violates the principle of beneficence and participates in the practice of torture.
3.5. Conclusion
As Dr. Malini[cix] and others argue, with the help of Narco-analysis, there is an increased proficiency and efficiency in the works of police and in other investigation departments. However, good ends never justify immoral means. There is much about the Narco-analysis that raises important concerns about the dignity and respect that must be accorded to human beings, the principles of self-incrimination and beneficence. The use of Narco-analysis raises a number of other concerns as well. The recording and subsequent public release of statements made by drugged subjects adversely impacts their right to a fair trial. The use of these statements for ‘recovery’ and ‘discovery’ of facts/materials and as corroborative evidence where recoveries are made may also be permissible despite the highly dubious scientific value of the ‘evidence’ extracted, making it possible for third persons being charged or charges being added as a result of such statements.
GENERAL CONCLUSION
The purpose of this research paper was to explore the efficacy of Narco-analysis along with an examination of the test based on a few ethical principles prevalent in the society in connection with Catholic Moral Theology. The society is divided into two on the use of Narco-analysis in the sector of police investigation. There are good number of people in the society, argue from an ethical perspective that the test cannot be morally acceptable, for it is a great violation of human rights and ethical perspective. Where as the second group, based on their utilitarian arguments, support Narco-analysis for the better living of the entire society. This section of research paper lists the arguments by both the parties and attempt to have a synthesis.
There are very many arguments supporting the use of the so-called ‘truth drug’ in the process of investigation. Majority of the arguments are utilitarian in nature and the result of modern thinking, which fails to stand for the justice of the other.
Narco-analysis is based on how sodium pentathol handles GAABA (gamma amino butyric acid), a neuro transmitter inhibitor. The inhibitory character of an individual is controlled by the depth of the anaesthesia and by psychological techniques specific to dealing with an individual in a “trance”. A clinical psychologist may evaluate the appropriateness and efficacy of eliciting information in this manner. All the parameters required for Narco-analysis and the degree of conscious awareness are constantly measured and monitored. Quantitative data are now available to determine the concentration of the drug administered at any point of time during the procedure and evaluate the level of confidence one can have about the outcome of such procedures. Although, barbiturates such as scopolamine, sodium amytal (ano barbital) and seconbarbital, were subsequently banned pentathol is not banned for therapeutic purposes. A case where the use of the machine led to wrong conclusions cannot be the basis for dismissing the technology.
The legal position about the constitutional rights of individuals against self-incrimination while subject to Narco-analysis has become clear after a number of high court decisions in India.[cx] The principle of “substantive due process” is never violated in doing Narco-analysis because permission from the jurisdictional court must be obtained prior to Narco-analysis in each and every case. The recent amendment (2005) to section 53 of the Cr.PC recognises the importance of these scientific tests.
As long as the principles underlying the technologies are recognised as scientific, no parallels can be drawn with “torture”. The FSL, Bangalore, has subjected more than 300 persons connected with a variety of crimes “involving organised crime by terrorist outfits, cyber crimes and other heinous crimes” from across the country, to such tests. The success rate has been 96-97 per cent as evaluated from the feedback received from investigating agencies and others. About 25 per cent of the total number of individuals subjected to Narco-analysis turned out to be “innocents”. Therefore, the “rights of innocent individuals” stand established[cxi].
The team that conducts Narco-analysis consists of one anaesthetist, one physician and one clinical/ forensic psychologist. The responsibility of each expert in the team is well defined. The physician certifies the fitness of the person before and after Narco-analysis, the anaesthetist modulates the depth of anaesthesia required depending upon the quantum of information to be obtained and monitors the various stages of anaesthesia. Only the clinical or forensic psychologist interacts with the individual who is a “trance” and gives reports along with videotapes to the courts on behalf of the team. No medical professional in the team is involved in interrogating the individual. This task is the exclusive domain of the clinical/forensic psychologist. There is, therefore, no violation of ethics by medical professionals.
The number of persons subjected to Narco-analysis is low when compared to the total number of crimes reported. This negligible percentage of individuals cannot hold society to ransom. Once the investigating officer files the charge sheet, it becomes a public document. Then we cannot argue that the police in India have started violating norms by airing videotape of Narco-analysis.
Studies have shown that it is possible to lie under Narco-analysis and its reliability as an investigative tool is questioned in most countries. A few democratic countries, India most notably, still continue to use Narco-analysis. This has come under increasing criticism from the public and the media in the country. Narco-analysis is not openly permitted for investigative purposes in most developed and/or democratic countries like United States and Great Britain. Following are the arguments expressed by opponents of the practice of Narco-analysis.
Narco-analysis is a clear violation of human dignity and human integrity. Even if the test provides some benefit to the community, since it violates these two important ethical principles, Narco-analysis cannot be accepted. Narco-analysis violates constitutional rights including the right against self-incrimination. Since the test provide harm to the individual, it is against the ethical principle of beneficence.
The test further has dubious scientific basis and place the subjects in a further vulnerable position vis-à-vis the police and other investigating authorities. The unreliable information made through the process can affect the progress of investigation. Narco-analysis never meets Daubert Standard. If legalized there are chances for abuse on the issue when and where it can be legally used.
It is widely accepted that the correct dose of the so-called truth serum depends on the physical condition, mental attitude and will power of the subject on whom the Narco-analysis is to be conducted. Therefore, it is difficult to measure the correct dose, and over dose cause even death of the subject.
Informed consent is usually not sought for the process of Naro-analysis, while from an ethics point of view this is absolutely necessary. Narco-analysis, therefore, falls perfectly in the ambit of torture as it is done against a person’s will, causes suffering and pain to the person
The procedure of Narco-analysis is video graphed and audio taped, which is proof that no coercion is being used. At the same time, if such tapes are made public before the judgement, it is a psychological harassment and punishment to the accused before the court has actually convicted them. It is a torture in two ways, formerly the test it self is an intrusion into a person’s privacy and denial of human reason with the alteration of the functionality of brain, secondly the result of the test can repute the fame and name of the person in the society.
Since it is great human right violation in many respects, we cannot approve using Narco-analysis in matters where public safety is at risk as it is presently done against terrorist in United States.
Long ago, German philosopher Immanuel Kant wrote about the perennial human tendency to find exceptions to binding moral rules when those obligations bind just a bit too tightly on us. “Hence there arises a natural…disposition to argue against these strict laws of duty and to question their validity, or at least their purity and strictness; and, if possible, to make them more accordant with our wishes and inclinations, that is to say, to corrupt them at their very source, and entirely to destroy their worth.”[cxii] We can see the same has happened to many moral rules in this modern society and Narco-analysis is not an exception to that.
A court in Kerala recently pronounced that no court order is required to do a Narco-analysis, Disposing of a petition filed by the CBI seeking permission of the court, the magistrate said that filing this type of a plea would only delay the investigation. The court said nobody could stand in the way of the investigating agency conducting tests recognised as effective investigation tools. When the technicalities of the test itself are not clear and uniform, it becomes difficult to accept the stand taken by the court.
It is demanded that Narco-analysis ‘truth-serum’ technique presently being used be completely stopped by the Government, that doctors stop carrying it out; that Magistrates reject police requests for such interrogation and that the Indian Supreme Court rule against the constitutionality of such testing. Let Indian government accept the request of the Law Commission headed by Justice A R Lakshmanan to ban Narco-analysis in India.
Let’s stop professing this ultravirus discovery, stop “scientific denial of precious human rights”. The wrong process will never earn right results. In every reasonable sense, the Narco-analysis is an unconstitutional and unscientific test, no matter its huge acceptance in the ‘conviction market’. Human rights are not something to be experiment in laboratory, no matter what ever safeguards attached to it. It is to be noted that nations around the globe have deviated from this prohibitive path. Yet we are pursuing it, as though it is the greatest scientific discovery of the millennium. If our society practices this inhuman method, we have to humanize our society.
Bibliography
Church Documents
Congregation for Doctrine of Faith, Donum Vitae, 1987.
Vatican Council II, Gaudium et Spes, 1965.
Monographs
Alder Ken, The Lie Detectors: The History of an American Obsession, New York: Free Press, 2007.
Amar Jesani, Narco Analysis, Torture and Democratic Rights, Delhi: Peoples Union for Democratic Rights, 2008.
Barash Paul G., Clinical Anaesthesia, Philadelphia: Lippincott, Williams and Wilkins, 2005.
Belenky Gregory, Contemporary studies in combat psychiatry, New York: Greenwood Press, 1987.
Birchard Rutherford, Gradwohl Hayes, Legal Medicine, St. Louis: The C. V. Mosby Company, 1976.
Clark David K., Empirical Realism: Meaning and the Generative Foundation of Morality, Lexington: Lexington Books, 2003.
Dershowitz Alan M., Why Terrorism Works: Understanding the Threat, Responding to the Challenge, New Haven: Yale University Press, 2003.
Deutsch Albert, The Trouble with Cops, New York: Crown, 1955.
David Heyd, “Death, Dying and Dignity”. Israel Yearbook on Human Rights 1999, ed. Yoram Dinstein, Series: Israel Yearbook on Human Rights, Volume 29, 10-20. Tel Aviv: Kluwer Law and International, 2000.
Fienberg Stephen E., Blascovich James J, The Polygraph and Lie Detection, Washington DC: The National Academic Press, 2003.
Finley Laura L., The Torture and Prisoner Abuse Debate, California: Greenwood Press, 2008.
Gerald Posner, Why America slept: the failure to prevent 9/11, New York: Random House, 2003.
Giovanni Pico della Mirandola, “Oration on the Dignity of Man,” The Renaissance Philosophy of Man Ernst Cassirer, eds. Paul Oskar Kristeller and John H. Randall, 220-226. Chicago: University of Chicago Press, 1948.
Grinker Roy Richard, Spiegel John, Men under Stress, Philadelphia: The Blakiston Co., 1945.
Grinker Roy Richard, Spiegel John, War Neuroses in North Africa: The Tunisian Campaign, New York: the Josiah Macy Jr. Foundation, 1943.
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Inbau F. G., Self-incrimination, Springfield: C. C. Thomas, 1950.
Intelligence Science Board, Educing Information—Interrogation: Science and Art Foundations for the Future, Washington, D.C.: NDIC Press, 2006.
Jacob Joseph M., Doctors & Rules: a Sociology of Professional Values, New Bruswick: Transaction Publisher, 1999.
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Kruszelnicki Karl, Yazxhi Adam, Great Mythconceptions: The Science Behind the Myths, Missouri: Andrews McMeel Publishing LLC, 2006.
Louis B. Schlesinger, Sexual Murder: Catathymic and Compulsive Homicides, Massachusetts: Taylor & Francis LLC, 2003.
Madhava Menon N. R., Draft National Policy on Criminal Justice, Delhi: Ministry of Home Affairs Government of India, 2007.
Matté James Allan, Forensic psychophysiology using the polygraph: scientific truth verification – Lie Detection, New York: JAM Publications, 2000.
Morgan Michael L., Classics of Moral and Political Theory, Indiana: Hackett Publishing Compaby, 2005.
Parker Peter and MOKHESI Joyce, In the Shadow of Sharpeville Apartheid and Criminal Justice , New York: New York University Press, 1998.
Parker Philiph M., Blink: Webster’s Quotations, Facts and Phrases, California: ICON Group International, 2008.
Rejali Darius, Torture and Democracy, New Jersey: Princeton University Press, 2007.
Richardson James R., Scientific evidence for police officers; scientific tests and experiments; specific methods of proof, Cincinnati: W. H. Anderson Co., 1963.
Rudin Norah, Inman Keith, An Introduction to Forensic DNA Analysis, Florida: CRC Press, 2002.
Sienho Yee, International Crime and Punishment: Selected Issues, Forbes Blvd: University Press of America, 2004.
Stephen Horsley J., Narco-Analysis, New York and London: Oxford University Press, 1943.
Stuart H. James, Nordby Jon J., Forensic science: an introduction to scientific and investigative techniques, Massachusetts: Taylor & Francis LLC, 2005.
Articles
Amar Jesani, “Response: Questions of Science, Law and Ethics,” Indian Journal of Medical Ethics 4, 1 (January – March 2007).
Andre Moenssens, “Narcoanalysis in Law Enforcement,” Journal of Criminal Law, Criminology and Police Science 52, 4 (1961).
Anupama Katakam, “What lies beneath,” Frontline 21, 5, (February 28 – March 12 2004).
Bannur Muthai Mohan, “Misconceptions about narco analysis,” Indian Journal of Medical Ethics 10, 1 (Jan-March 2007).
Charles Burns, “Narco-analysis in Treatment of War Neuroses”, British Medical Journal, (5 September 1942).
Farwell L. A., Smith S.S., “Using brain MERMER testing to detect knowledge despite efforts to conceal,” Journal of Forensic Science 46, 1 (January 2001).
Freedman, L. Z., “’Truth’ drugs,” Scientific American 202, 3 (March 1960).
Grethe Pærregaard, “The Value of Narcoanalysis as Shown by a Re-examination,” Acta Psychiatrica Scandinavica 31, 106, (1957).
Gilbert Meilaender, “‘Love’s Casuistry’: Paul Ramsey on Caring for the Terminally Ill”, The Journal of Religious Ethics 19, 2 (Fall, 1991).
Hansenne M, “The P300 event-related potential. II. Interindividual variability and clinical application in psychopathology,” Clinicall Neurophysiology 30, 4 (August 2000).
Kenneth S. Pope and Thomas G. Gutheil, “Contrasting Ethical Policies of Physicians & Psychologists Concerning Detainee Interrogations,” British Medical Journal 19, 8 (August 2009).
Luis Justo, “Doctors, Interrogation and Torture,” British Medical Journal 13, 6 (June 2006).
MacDonald, J. M., “Narcoanalysis and criminal law,” American Journal of Psychiatry, (October 1954).
Muehlberger C. W., “Interrogation under Drug Influence: The So-Called ‘Truth Serum’ Technique,” Journal of Criminal Law, Criminology and Police Science 42, 4 (April 1951).
Snider, R. S., “Cerebellum,” Scientific American 199, 2, (August 1958).
Sriram Lakshman, “Narcoanalysis and some hard facts,” Frontline 24, 9 (May 05-18, 2007).
Sutton S., Braren M., Zubin J., and John E. R., “Evoked-Potential Correlates of Stimulus Uncertainty,” Science 150, 11 (November 1965).
Wilde J. F., “Narco-analysis in Treatment of War Neuroses”, British Medical Journal, (4 July 1942).
Wilde J. F., “Narco-analysis for War Neuroses”, British Medical Journal, (17 October 1942).
Online Articles
Laura Guevin, “Picking Your Brain in the Name of Security,” BiometriTech, http://www.tmcnet.com/tmcnet/columns/laura081602.htm
Melvin Urofsky, “Rights of the Accused,” Rights of the People: Individual Freedom and the Bill of Rights. http://usinfo.org/zhtw/DOCS/RightsPeople/accused.html
Moore G. William, “Medical Etymology for Anatomic Pathologists,” http://www.netautopsy.org/medetymo.htm
Soto Onell R. “Interrogation machine’s maker settles Crowe suit”, San Diego Union-Tribune, (24 May 2005). http://antipolygraph.org/news/polygraph-news-027.shtml
News Papers
Fali S. Nariman, “Making a Clean Getaway”, Indian Express, 09 September 2008. http://www.indianexpress.com/news/making-a-clean-getaway/358978/0
“Government urged not to use narcoanalysis for investigations” The Hindu, 16 March 2008. http://www.hinduonnet.com/2008/03/16/stories/2008031654490600.htm
“Info under Narco Test Cannot be Treated as Evidence”, The Times of India, 27 September 2009.
Johnson Kevin, Willing Richard, “Ex-CIA chief revitalises ‘truth serum’ debate,” USA Today, 26 April 2002. http://www.usatoday.com/news/nation/2002/04/26/torture.htm
Michael Slackman, “What’s Wrong With Torturing a Qaeda Higher-Up?,” New York Times, 16 May 2004.
Neeraj Chauhan, “Aarushi case: accused says narco-analysis affected his hearing,” Indian Express, 26 December 2008. http://www.indianexpress.com/news/aarushi-case-accused-says-narcoanalysis-af/403084/
“Narcoanalysis and Its Admissibility in Court,” The Financial Express, 20 March 2004. http://www.financialexpress.com/news/narcoanalysis-and-its-admissibility-in-court/101722/
Encyclopaedias
The Catholic Encyclopaedia, Volume 13. s.v. “The Law of the Seal of Confession,” by Nolan Richard.
New World Online Encyclopaedia, s.v. “Polygraph,” http://www.newworldencyclopedia.org/entry/Polygraph
Other
Alan M. Dershowitz, Review of The Best Offense by Richard A. Posner, The New Republic, (September 2, 2002). http://www.tnr.com/article/the-best-offense
Chamakala Lucose, Lucture, DVK, Class Notes on Biomedical Ethics, 2008.
Notes
[i] Posner, Why America Slept: the failure to prevent 9/11, 187-188.
[ii] Mohan, “Misconceptions about Narco Analysis,” 7-8.
[iii] Art. 20(3) of Indian Constitution.
[iv] Jesani, “Narco Analysis, Torture and Democratic Rights,” 25.
[v] Nandini Sathpathy v. P L Dani, AIR. 1978 SC 1025.
[vi] Stephen, A History of the Criminal Law of England, cited in Parker and Mokhesi, In the Shadow of Sharpeville Apartheid and Criminal Justice, 80.
[vii] Pliny, the elder, who lived in first century AD states that “It has become quite a common proverb that in wine there is truth,” See. Natural History. Book xiv. Section. 141.
[viii] Muehlberger, “Interrogation under Drug Influence: The So-Called ‘Truth Serum’ Technique,” 513.
[ix] “The History and Evolution of Lie Detection” [Online].
[x] New World Online Encyclopaedia, s.v. “Polygraph.”
[xi] “History of the Polygraph” [Online].
[xii] Deutsch, The Trouble with Cops, 150.
[xiii] Parker, Blink: Webster’s Quotations, Facts and Phrases, 62.
[xiv] Fienberg and Blascovich, The Polygraph and Lie Detection, 11-28.
[xv] Matté, Forensic psychophysiology Using the Polygraph: Scientific Truth Verification – Lie Detection, 24.
[xvi] Sutton, et al., “Evoked-Potential Correlates of Stimulus Uncertainty,” 1187-1188.
[xvii] Guevin, “Picking Your Brain in the Name of Security” [Online].
[xviii] Farwell and Smith, “Using Brain MERMER Testing to Detect Knowledge Despite Efforts to Conceal,” 135-143.
[xix] Hansenne, “The P300 Event-related Potential. II. Interindividual Variability and Clinical Application in Psychopathology,” 211-231.
[xx] William, “Medical Etymology for Anatomic Pathologists” [Online].
[xxi] Stephen, Narco-Analysis, 134.
[xxii] Rejali, Torture and Democracy, 386.
[xxiii] Moenssens, “Narcoanalysis in Law Enforcement,” 454.
[xxiv] Kruszelnicki and Yazxhi, Great Mythconceptions: The Science behind the Myths, 95.
[xxv] Barash, Clinical Anaesthesia, 592.
[xxvi] Chauhan, “Aarushi Case: Accused Says Narco-analysis Affected His Hearing” [Online].
[xxvii] Any derivative of barbituric acid (an organic acid from which various sedatives and sleep-inducing drugs are derived) used in the preparation of sedative and sleep-inducing drugs.
[xxviii] Snider, “Cerebellum,” 84-90.
[xxix] Freedman, “’Truth’ drugs,” 145 – 154.
[xxx] According to Harold L Kaplan, MD and Benjamin J Sadock, the Barbital is the first barbiturate ever introduced in to clinical medicine in 1903. According to them “the barbiturates have effects on all organs and systems and the CNS is most sensitive to the effects of the barbiturates at clinical dosages most effects are central. See Kaplan and Sadock, Comprehensive Text Book of Psychiatry, 1928-1929.
[xxxi] Katakam, “What lies beneath,” 21.
[xxxii] Belenky, Contemporary Studies in Combat Psychiatry, 17.
[xxxiii] Lakshman, “Narcoanalysis and Some Hard Facts,” 97-102.
[xxxiv] Schlesinger, Sexual Murder: Catathymic and Compulsive Homicides, 62.
[xxxv] Recordings of such narco-tests are helping electronic channels to meet their insatiable demand for material to fill time on a dry day, fill the pockets of those police personnel who have access to these recordings and a useful tool of blackmail by those who have access to them. But above all it projects the accused as a criminal.
[xxxvi] Birchard and Gradwohl, Legal Medicine, 955.
[xxxvii] Amar Jesani, “Response: Questions of Science, Law and Ethics,” 10-11.
[xxxviii] Grinker and Spiegel, Men under Stress, 389 – 394.
[xxxix] Finley, The Torture and Prisoner Abuse Debate, 35.
[xl] Richardson, Scientific Evidence for Police Officers; Scientific Tests and Experiments; Specific Methods of Proof, 146-149.
[xli] US V Solomon, 753 F.2d.1522 (9th Cir.1985) 1985.
[xlii] “Narcoanalysis and Its Admissibility in Court,” The Financial Express, 20 March 2004, 10.
[xliii] Mr. Dushyant Dave is a Senior Advocate practising in the Supreme Court of India and he is a leading practitioner on the commercial side.
[xliv] “Info under Narco Test Cannot be Treated as Evidence,” The Times of India, 27 September 2009, 10.
[xlv] United Nations, United Nations Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment, 1988, Article 1.
[xlvi] Pontifical Biblical Commission, The Interpretation of the Bible in the Church, 18 March 1994.
[xlvii] Intelligence Science Board, Educing Information—Interrogation: Science and Art Foundations for the Future, 17-44.
[xlviii] Onell, “Interrogation machine’s maker settles Crowe suit” [Online].
[xlix] Lakshman, “Narcoanalysis and some hard facts,” 97-102.
[l] “Inter-American Convention to Prevent and Punish Torture”, Article 2.
[li] AIR. 1978 SC 1025.
[lii] Nariman, “Making a Clean Getaway”, Indian Express, 09 September 2008, 10.
[liii] Pærregaard, “The Value of Narcoanalysis as Shown by a Re-examination,” 257.
[liv] Pærregaard, “The Value of Narcoanalysis as Shown by a Re-examination,” 257.
[lv] Burns, “Narco-analysis in Treatment of War Neuroses,” 295.
[lvi] Wilde, “Narco-analysis in Treatment of War Neuroses,” 4.
[lvii] Ibid., 4.
[lviii] Wilde, “Narco-analysis in Treatment of War Neuroses,” 6.
[lix] Wilde, “Narco-analysis for War Neuroses,” 467.
[lx] MacDonald, “Narcoanalysis and criminal law,” 283 – 288.
[lxi] 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”.
[lxii] Jesani, “Introduction,” 6.
[lxiii] MacDonald, “Narcoanalysis and criminal law,” 283 – 288.
[lxiv] Freedman, “’Truth’ drugs,” 145 – 154.
[lxv] Inbau, Self-incrimination, 148.
[lxvi] Grinker and Spiegel, War Neuroses in North Africa: The Tunisian Campaign, 82.
[lxvii] Central Intelligence Agency
[lxviii] Bimmerle, “‘Truth’ Drugs in Interrogation” [Online].
[lxix] Rudin and Inman, An Introduction to Forensic DNA Analysis, 185.
[lxx] Hanna and Mazza, Discussion of the Committee on Daubert Standards Summary of Meetings, 1-2.
[lxxi] “Government urged not to use narcoanalysis for investigations,” The Hindu, 16 March 2008, 10.
[lxxii] Slackman, “What’s Wrong With Torturing a Qaeda Higher-Up?,” New York Times, 16 May 2004, 10.
[lxxiii] Ibid., 10.
[lxxiv] Posner, “The Best Offense,” 271.
[lxxv] Chauhan, “Aarushi case: accused says narco-analysis affected his hearing”, Indian Express, 26 December 2008, 10.
[lxxvi] Ibid., 10.
[lxxvii] Menon, Draft National Policy on Criminal Justice, 34.
[lxxviii] Latin, decere = to be suitable.
[lxxix] Wikipedia, 2009, s.v. “Dignity” [Online].
[lxxx] Clark, Empirical Realism: Meaning and the Generative Foundation of Morality, 218.
[lxxxi] Kant, Grundlegung zur Metaphysik der Sitten, cited in Morgan, Classics of Moral and Political Theory, 915.
[lxxxii] Mirandola, “Oration on the Dignity of Man,” 223-225.
[lxxxiii] Heyd, “Death, Dying and Dignity,” 31.
[lxxxiv] Second Vatican Council, Gaudium et Spes, 1965, 26.
[lxxxv] Kishore Singh v. State of Rajasthan, AIR 1981 SC 625.
[lxxxvi] International Covenant on Civil and Political Rights
[lxxxvii] International Covenant on Civil and Political Rights, Article 10 (1).
[lxxxviii] The video of the Narco-analysis tests conducted on the accused in the Sister Abhaya murder case is broadcasted by Television Channels.
[lxxxix] John Paul II, Veritatis Splendor, 1993, 80.
[xc] Congregation for Doctrine of Faith, Donum Vitae, 1987, III.
[xci] Chamakala, “Biomedical Ethics,” 2008, Class Notes Distributed at DVK.
[xcii] The Catholic Encyclopaedia, Vol. 13, 1912, s.v. “The Law of the Seal of Confession,” by Richard.
[xciii] International Information Programs, “Rights of the Accused, Rights of the People: Individual Freedom and the Bill of Rights” [Online].
[xciv] Act of Congress of August 29, 1916, section 3; paragraph 3; Code of Criminal Procedure, section 15 [4]; United States Constitution, fifth amendment.
[xcv] AIR 1978 SC 1025 (Nandini Sathpathy, former Chief Minister or Orissa, against whom a case had been registered under ‘The Prevention of Corruption Act’, was asked to appear before the deputy superintendent of police [vigilance] for questioning. The police wanted to interrogate her by giving her a string of questions in writing. She refused to answer the questionnaire, on the grounds that it was a violation of her fundamental right against self-incriminiation)
[xcvi] As part of its investigation of Sr. Abaya murder case, in August 2007, the CBI conducted Narco Analysis tests on Fr. Thomas Kottoor, Fr. Jose Poothrikkayil, Sr. Sephy and some others whom they believed had knowledge about the case. The video tapes of narco-analysis on the three prime accused, that of Fr. Thomas’, Fr. Jose’s and of Sr. Sephy’s were telecasted by Malayalam television channels on Monday 14 September 2009. The video clips were later withdrawn from telecasting following instructions from the High Court of Kerala.
[xcvii] The Hippocratic Oath is an old oath historically taken by doctors swearing to ethically practice medicine.
[xcviii] Jacob, Doctors & Rules: a Sociology of Professional Values, 192.
[xcix] Meilaender, “‘Love’s Casuistry’: Paul Ramsey on Caring for the Terminally Ill,” 133.
[c] The World Medical Association Declaration of Tokyo – Guidelines for physicians concerning torture and other cruel, inhuman or degrading treatment or punishment in relation to detention and imprisonment. Adopted by the 29th world medical assembly; October 1975; Tokyo, Japan. Editorially revised at the 170th Council Session; May 2005; Divonne-les-Bains, France.
[ci] Pope and Gutheil, “Contrasting Ethical Policies of Physicians & Psychologists Concerning Detainee Interrogations,” 338.
[cii] Sienho. International Crime and Punishment: Selected Issues, 208.
[ciii] Medical Council of India, Code of Ethics Regulations – 2002 [Online].
[civ] Kevin and Richard, “Ex-CIA Chief Revitalises ‘Truth Serum’ Debate,” USA Today, 26 April 2002, 10.
[cv] Luis Justo is a researcher and bioethicist at Universidad Nacional del Comahue, Cipolletti, Argentina
[cvi] Behavioural Science Consultation Teams
[cvii] Justo, “Doctors, Interrogation and Torture,” 1462-1463.
[cviii] Usually the anesthetist receive the consent of the subject, before the injection of the drug
[cix] She was the assistant director of Bengaluru Forensic Sciences Laboratory, later sacked by the Karnataka government for allegedly leaking out the information obtained through Narco-analysis to media and for lot of other accusations.
[cx] Order of Hon’ble High Court of Karnataka in CRL petition no 1964/2000 September ( 2004), ALL MR (Cri) 1704, (2004) [Bombay High Court].
[cxi] Cri. L. J. 2401 (2006) [Madras High Court], ALL MR (Cri) 74, (2005) [Orissa High Court].