Legal status of DNA as an Evidence in India

Vidhi Agarwal

DNA stands for Deoxyribo Nucleic Acid which is unique in every other individual except identical twins. Sir Alec John Jeffreys was the first person who reported the DNA testing in 1984. Human character, behaviour and body characteristics are determined by the DNA structure.

In biological evidence such as blood, hair, and semen, DNA has been found and decides if it can be linked to DNA taken from particular individuals. A DNA, therefore, can be loosely understood as a distinctive identification card issued to us by God. The identification given by this card is beyond doubt and, to some degree, even unquestionable, which has now been well founded by a multitude of judgments around the world.

The application of DNA helps to classify offenders in crime, to scan for parentage conflicts, to track migration, and to perform genealogical and medical studies.

ORIGIN OF THIS TECHNIQUE

Approximately three decades ago, in the late 1980s, DNA profiling and fingerprinting came into use, and the initial criminal case in which this technique was used was for a trial in a United Kingdom village, where the research indirectly helped to catch a criminal associated with psychosexual pathology and convicted of the rape and murder of two minors. This case has rocketed the technology to worldwide popularity and has since grown exponentially, allowing millions of criminals to be successfully prosecuted.

In law enforcement, DNA fingerprinting has become a valuable method as it operates both ways, obtaining right convictions and even absolving the innocent.

ITS ADMISSIBILITY IN INDIAN COURTS AS EVIDENCE

The admissibility of the DNA evidence before the court often relies on its correct and sufficient compilation, storage and documentation that can reassure the court that it is credible for the evidence that has been put forward.

There is no relevant legislation in India that can provide specific instructions to the investigating agencies and the court, as well as the procedure to be followed as evidence in cases involving DNA. In addition, there is no statutory provision for handling research, technology, and forensic science problems under the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973.

An investigating officer must face a lot of difficulties in gathering evidence that requires modern mechanisms to prove the accused person guilty because of the absence of any such clause. For the purposes of prosecution, Section 53 of the Code of Criminal Procedure 1973 requires a police officer to seek the bona fide help of a medical practitioner.

But, for bringing criminal proceedings against the defendant, it does not authorize a plaintiff to obtain blood, semen etc. Amendment of Cr. P.C. in 2005, with the aid of a medical practitioner, brought two new parts allowing the investigating officer to extract DNA samples from the body of the accused and the victim. These sections authorize the inspection by the medical practitioner of the person accused of rape and the medical check of the rape victim, respectively.

The admissibility of such facts, however, remained in a state of uncertainty as the interpretation of the Supreme Court and the various High Courts persisted contradictory in the multiple rulings Judges do not dispute the scientific precision and inductances of DNA testing, but in certain cases, on the grounds of legal or constitutional regulation and often public policy, they do not consider such proof.

There is an imminent need for detailed legislation to include guidance governing DNA testing in India to ensure that new technologies can be used effectively.

In addition, the appeal for DNA testing on the civil side is rendered to overcome the paternity problem in cases of divorce, maintenance, inheritance, and succession, etc. It is notable that the legitimacy of a child born in wedlock is given in Section 112 and the only basis for rebutting this assumption is non-access by the husband. It was therefore a concern before the court dealing with paternity problems at one time if such a test could be conducted.

Without the perspective of self-incrimination referred to in Article 20(3) and the question of the infringement of an individual’s privacy and its implications under Article 21 of the Constitution of India, the issue of DNA fingerprinting cannot be addressed. Under these papers, the numerous statutory provisions swung around like a parabola, resulting in widespread confusion as to the legal status of DNA technology.

Let us consider a few of the Seminal decisions that have discussed the issue of the relationship between the technology of DNA fingerprinting and the right to self-incrimination and privacy.

In Gautam Kundu vs. Bengal, where the division bench of apex court, inter alia, maintained as follows, this issue was debated at length

1. As a matter of procedure, the courts in India cannot order a blood test.
2. There must be a clear prima facie argument that, to refute the suspicion emerging under Section 112 of the Proof Act, the husband must provide for non-access.
3. Nobody should be coerced to give blood samples for examination.

Subsequently, however, in Sharda v Dharmpal, a full bench of the Supreme Court found the authority of a marriage court to order such a test and confirmed that Goutam Kundu (supra) is not an authoritative figure for the proposal, the Court cannot require that blood tests be done in any conditions.

It, taking into consideration the child’s future, sounded, of course, a note of warning as regards the technical passage of such a command. After heavy debate, the Court summed up three crucial conclusions:

1. A marriage court has the right to require an individual to undergo medical tests.
2. It would not be in breach of the right to personal liberty provided for in Article 21 of the Indian Constitution to pass such an order by the court.
3. However, if the claimant has a clear prima facie argument and adequate material exists before the Court, the Court should exercise such a power. If the defendant fails to agree to medical examination notwithstanding the order of the court, the court would be authorized to draw a detrimental conclusion against him.

Without addressing the precedent developed by the Hon’ble Supreme Court in the case of State of Bombay v. Kathi Kalu Oghad &ors, leaning on the topic of self-incrimination is practically impossible. An eleven-member court judge’s bench ruled that:

If a convicted person is called upon to give his finger impression or signature or a sample of his handwriting by the Court or some other body conducting an inquiry, he does not give any evidence of the sort of a ‘personal testimony.’

The provision of ‘personal testimony’ must rely on his will. He may render declaration or can decline to submit any declaration. But in spite of attempts to hide the true essence of it through subterfuge, his finger impressions or his handwriting will not alter their inherent essence.

Therefore, while it can equate to presenting evidence in the wider context, the providing of finger impressions or specimen writing or signatures by an accused individual is not contained in the term ‘to be a witness’.

The court therefore found that the grant of fingerprint or the compilation of some other ‘private existence’ proof does not essentially attract the full nemo debet proderese ipsum, i.e., no one can be expected to be his own betrayer; as the latter would suggest that, either by way of excessive control, intimidation, or threat or not, an individual has created information of his own freewill that would determine his culpability.

In addition, in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, the Hon’ble Supreme Court, while stressing the importance of DNA testing in the judicial management mechanism held:

Where there is a direct dispute between a person’s right to privacy not to subject himself coercively to medical examination and the court’s obligation to reach the facts, the court must assert its authority only after weighing the rights of the parties and taking due account of whether a DNA test is extremely appropriate for a just judgment in the matter.

From the standpoint of the admissibility of DNA evidence, the Supreme Court directing veteran Congress leader Tiwari to undergo the DNA test is very relevant. Rohit Shekhar, in this case, claimed to be the biological son of N.D. Tiwari, but N.D. Tiwari was unwilling to undertake a test that would breach his right to privacy and cause him public embarrassment.

But the Supreme Court rejected this argument, arguing that there is no point in being embarrassed because the results of the test will not be known to anybody and it would be under a sealed envelope. The Supreme Court further claimed that they want justice for the youth; he should not leave without any solution.

Later, the test results were out, and it was proved that N.D. Tiwari was the biological father of Rohit Shekhar with Ujjwala Tiwari as the mother. Hence, Tiwari accepted Rohit as his son and married Ujjwala later.

HIGHLIGHTS OF THE DNA TECHNOLOGY BILL

• The purpose of the Bill is to control the use of DNA technology to determine the identification of individuals in matters set out in the IPC, as well as violations under other laws such as the Immoral Traffic (Prevention) Act of 1956, the Medical Termination of Pregnancy Act of 1971, the Civil Rights Protection Act of 1955 and the Motor Vehicles Act of 1988 and for other civil matters such as migrations.
• The Bill would set up a DNA Profiling Board when it is finalized as an Act.
• The representatives of the Regulatory Board shall consist of biological science experts; officials of the National Commission on Human Rights; Director-General of the National Investigation Agency(or nomination); Director of the CBI(or nominee); Director-General of the State Police; Director of the Centre for DNA Fingerprinting and Diagnostics; Director of the National Laboratory Testing and Calibration Accreditation Board; Director of the Central Laboratory for Forensic Science; Officers not below the level of Joint Secretary;
• A National DNA Data Bank and multiple Regional DNA Data Banks will be set up for the sake of the Bill for Maintaining primary measures such as the index of crime scenes, the index of victims or undertrials, the index of criminals, the index of missing persons and the index of unknown deceased persons. The DNA laboratories are expected to share with the Data Banks the DNA information obtained during the study.
• As a rule, DNA samples can only be obtained with the written consent of the individual, but approval is not necessary for offences with a penalty of more than seven years in prison or death. If the magistrate is convinced that adequate and fair cause exists, the magistrate may warrant the taking of anatomical specimens.
• No laboratory shall perform DNA research without the licensure of the Board of Directors.
• The Bill allows for the elimination, on the pretext of a court order, of DNA profiles of offenders upon filing of a police report or court order, and of under-trials.
• The Board shall take all appropriate measures to assures that evidence pertaining to DNA profiles is secured against access, use or disclosure that is not authorized under this Act or any of its legislation and that all DNA data, samples and records thereof are used solely for the cause of enabling the identification of the individual and not for any other reason.
• Whoever voluntarily reveals such records in any way to any person or agency not authorized to procure it under this Act shall be punishable by imprisonment for a period of up to three years and also by a fine of up to one lakh rupee; voluntarily obtains individually identifiable DNA details from the DNA repository of up to three years and also by a fine of up to one lakh rupee; Encrypts details other than in compliance with the provisions of this Act; knowingly and purposely removes, changes, contaminates or tampers of biological evidence necessary to be held for the time being under any law shall be punishable by imprisonment for a period of up to five years and by a fine of up to two lakh rupees.

CONCLUSION

There is currently no clear law in India regulating forensic technology admissibility issues. Certain sections, i.e., Parts 53, 54, 53(A), 164(A) of the Code of Criminal Procedure covers, to a certain degree, science, and technology problems.

Therefore, either authorizing DNA testing or refusing any such request is entirely left to judicial discretion. Such a situation generates doubt and confusion about the subordinate judiciary.

Hence, the bill if not misused by the investigating authorities and the loopholes eliminated, can be passed for greater clarification on the DNA technology and forensic evidences.

*Status of DNA as evidence in India(legaldesire.com)

*Admissibility DNA as Evidence(thelawbrigade.com)

*DNA Profiling in India(mondaq.com)