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.
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]
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]
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]
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
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]
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.
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]
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.
2.0.
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.
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.
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]
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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]
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.
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.
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]
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.
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]
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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.
