‘Violates fundamental rights': SC sets aside narco test order
A bench of Justices Sanjay Karol and PB Varale set aside a 2023 Patna high court order that had accepted an investigating officer's proposal to conduct narco-analysis tests on all accused and witnesses in a dowry harassment case linked to the disappearance of a woman.
'We have no doubt that the impugned order cannot be sustained,' said the bench said, adding that 'under no circumstances is an involuntary or forced narco-analysis test permissible under law.'
The court held that the high court erred in accepting the submission of the police for administering the test, noting that it contravened the law laid down in the landmark 2010 ruling in Selvi vs State of Karnataka, where a three-judge bench had declared such techniques unconstitutional if done without consent.
'Articles 20 and 21 of the Constitution are non-derogable and sacrosanct rights to which the judiciary cannot carve out exceptions…Involuntary administration of narco-analysis and similar tests is in contravention of the protection given by Article 20(3)...The results of such involuntary tests cannot be considered as material evidence in the eyes of the law,' noted the bench.
To be sure, a narco-analysis test is a forensic interrogation technique in which a suspect is injected with a psychoactive drug to lower their inhibitions and suppress their reasoning ability, in an attempt to extract information, they might otherwise withhold.
The bench further stated that permitting such tests without consent would breach a person's right to privacy and amount to a disproportionate exercise of police powers.
The apex court also rejected the state's argument that 'modern investigative techniques are the need of the hour,' saying such measures must never come at the cost of constitutional guarantees. 'While the need for modern investigative techniques may be true, such investigative techniques cannot be conducted at the cost of constitutional guarantees under Articles 20(3) and 21,' it said.
The Court also clarified that a voluntary narco-analysis test, undertaken at an appropriate stage and with adequate safeguards, may be permissible. However, the outcome of such tests, by itself, cannot form the sole basis for a conviction.
'A report of a voluntary narco-analysis test with adequate safeguards in place, or information found as a result thereof, cannot form the sole basis of conviction,' held the court, referring to the evidentiary value of discoveries made under Section 27 of the Indian Evidence Act.
The third key issue addressed in the judgment was whether an accused has an indefeasible right to undergo a narco-analysis test voluntarily. As highlighted by senior advocate Gaurav Agrawal, who assisted the bench as amicus curiae, the bench noted conflicting views from different high courts, including a Rajasthan high court ruling which held that the accused could seek such a test under their right to lead evidence.
Rejecting that interpretation, the bench held: 'It cannot be said that undergoing a narco-analysis test is part of the indefeasible right to lead evidence, given its suspect nature... Such a right is not absolute.'
Simultaneously, the bench acknowledged that an accused may move an application seeking a voluntary narco test during trial, and if such a plea is made, the concerned court must carefully assess the totality of circumstances, including free consent and necessary safeguards, before allowing the test.
'The accused has a right to voluntarily undergo a narco-analysis test at an appropriate stage... However, there is no indefeasible right with the accused to undergo a narco-analysis test,' the judgment clarified.
Concluding, the apex court said that the Patna high court's decision to allow narco-analysis at the bail stage was not only premature but outside the scope of what a court considers while adjudicating a bail application. 'It does not involve entering into a roving enquiry or accepting the use of involuntary investigative techniques,' it added.
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