Open Access Research Article
ADMISSIBILITY OF DNA FINGERPRINTING IN THE INDIAN LEGAL SYSTEM
Published Paper
Article Details
ADMISSIBILITY OF DNA FINGERPRINTING
IN THE INDIAN LEGAL SYSTEM
AUTHORED BY -
SNIGDHA SOOD[1]
Abstract
Crime is a social evil from which all of the humanity has been plagued,
since the beginning of civilization or perhaps even before that. Often, crimes
go punished, owing to the lengthy and stringent procedures around the convicts
actually getting caught by the officers of law, followed by being put under
trial for their alleged crimes. In the course of that, extraction of evidence
and testimony is one of the greatest hurdles that the appropriate authorities
have to overcome. Amidst these challenges, the latest innovations and
techniques may be perceived as light at the end of the tunnel that eventually
help nipping the criminals in the bud and expedites the process of seeking
justice in especially complex criminal matters.
The same has been case with innovation of DNA Fingerprinting, as DNA is
one of the unique features of a human being and can be found in practically
every organic matter such as hair, saliva, blood, semen etc. Since DNA is
unique in each human being, organic matter left in the crime scene provides a
sure shot opportunity for law enforcement officers to apprehend the suspects
and get them on trial.
While, there is no specific law as of now that deals with DNA
Fingerprinting and its admissibility in the legal system, the courts from time
to time make provisions and grant admissibility to the same by deploying the
various provisions of Evidence law and the Criminal Procedure Code. Despite
being a rather new concept, in the recent times, it has become a major force to
reckon with, owing to the breakthroughs that it has made in the field of crime
scene investigation.
The paper primarily focuses on the role played by DNA fingerprinting in
furthering the criminal investigation and providing justice. Further, the paper
sheds light on the admissibility of DNA Fingerprinting as evidence and analyzes
its evidentiary value in the court of law.
Keywords –
DNA, Evidence, Criminal Investigation, Admissibility
I.
Introduction
DNA is an abbreviation of “Deoxyribo Nucleic Acid”, which can be
found in every living cell of all the species found on the face of the planet
Earth. DNA is especially useful in a criminal investigation primarily because
each and every person on the planet, has a rare and unique DNA sequence which
the law enforcement agencies can put to use to find and pinpoint the
perpetrator of a crime and help him bring to justice.
Interestingly, like most innovation,
the practice of using DNA fingerprinting as the means for investigating crimes
was first used in West, in the case of Colin Pitchfork, who was an
alleged serial killer and rapist who managed to mislead the justice system for
a long time, but, on one such occasion, he left his semen in one of the
victims, which led to the tracing of his DNA Profiling.
Following that, years later when DNA
database was setup, and eventually gained momentum, it became rather simple to
pinpoint the perpetrator- he was apprehended and brought to justice[2].
In the present times, DNA fingerprinting has brought a wave of reforms in the
criminal justice system for it acts a huge deterrent for the criminals, owing
to the fact that a single strand of hair can lead to them being captured or
apprehended.
Besides, criminal investigation, DNA
Fingerprinting has also helped in other instances such as in the identification
of the last remains of Tsar Nichols II[3],
the identification of Former Nazi SS officer Josef Mengele found in Brazil[4]
where he escaped in an attempt to evade justice. In this frame of reference, it
may be said that, DNA Fingerprinting in not always used to put people behind
bars, but sometimes it may even come to the rescue of those in question, as was
the matter in the case of Henry McCollum and Leon Brown in United States, where
it helped to finally acquit him[5]
and 17 other death row inmates[6] by
proving their innocence with DNA fingerprinting.
As far as crime scene investigation
is concerned, DNA can be extracted from the organic matter present at crime
scene by thorough caution and investigation, and can then be matched against
the suspects, but in order for DNA Fingerprinting to work, the law enforcement
should have suspects to match it against or a comprehensive database of every
citizen of the country. Although even if sufficient database of DNA is
available, it can certainly help to narrow down the list of possible convicts
to some extent as generally, immediate family or the people closely related
with the family, have somewhat similar DNA. This can in turn, help the law
enforcement agencies in those instances where there is no evidence or no
witness to help solve the case, DNA profiling can provide a big piece of the
puzzle and put it right where it ought to be to solve crime scene mysteries.
II.
Admissibility of DNA Fingerprints in
the Court
In order for DNA fingerprinting to
actually make an impact on the perpetrator and bring them to justice, it is
vital for it to be admissible in the Court of Law. In the case of Pantangi Balarama Venkata Ganesh vs. State
of Andhra Pradesh[7],
the DNA Export deposed in front of the court and stated that “If the DNA fingerprint of a person matches
with that of a sample, it means that the sample has come from that person only.
The probability of two persons except identical twins having the same DNA
fingerprint is around 1 in 30 billion world population”. Hence, in the instant case, it was
categorically held by the Court that the DNA evidence is admissible in
the court proceedings.
However, it is indispensable that the
DNA Evidence must be procured with great caution and care in order to ensure no
contamination or tampering with the samples has taken place. Further, in case
of any inconsistency found with the same, the Court may make the DNA evidence
inadmissible in favor of defendant, as the reliability of the sample may be
called into question, which most certainly decreases its evidentiary value as
compared to other evidence(s).
The apparent dearth or even absence
of specific or centralized legislations concerning the provisions of DNA
Fingerprinting in Indian Legal system, coupled with the lack of specific
provisions in Evidence Act or Code of Criminal Procedure[8]-
are perhaps indicative of the inadequacies of the modern laws related to
scientific advancement, and bring to the fore the loopholes in the
process of the collection of such DNA Evidence by the investigation officers.
In this context, it is pertinent to note that, according to the provisions of
the Criminal Procedure Code[9], for
instance, the investigation officer is authorized to request the medical
practitioner to help in examination of the accused. However, CrPC does not
permit these authorities to collect the semen or blood samples for DNA
profiling purposes. The additions in the Criminal Code by virtue of the Amendment
Act of CrPC in 2005[10], Section
53A was added which conferred upon the medical practitioners the power to
extract samples for DNA profiling. However, the implementation of the same may
be said to be more or less dubious as the opinions of various high courts and
supreme court greatly vary on the subject matter, and, the constitutionality of
such provisions is constantly under the scanner. This is possibly because it is
often alleged that the police officers may misuse this provision as per their
discretion[11].
In the case of Shreemad Jagadguru Shankaracharya v State of Karnataka[12], however, it was held that the said provision is
necessary and well within the ambit of the Constitution, provided specifically
for the proper and smooth functioning of systemic operations.
While the Indian Judiciary does not
negate the scientific accuracy provided by the DNA fingerprinting, the accuracy
and efficiency in collection or procurement of the samples has been called into
question far too many times, especially in the recent past.
Further, the admissibility of DNA
samples can go against public policy and the ethos of the Constitution for it
often entails forcing the suspects to provide the sample, which may be viewed
as a violation of their Constitutional rights. The choice to not give any
evidence in the form of samples, however, can be used against them[13],
thereby problematizing their stance. Hence, it can effectively be inferred that
there is an urgent need to incorporate DNA profiling into the Indian Legal
System, and modernize the various statutes in order to close such
loopholes and provide better access to justice.
III.
Need Of the Hour: Effective
Incorporation of DNA Fingerprinting in the Indian Legal System
With the ever-evolving world and the
advent of new technological advancements, it has become the need of the hour,
for our society to move forward by embracing and incorporating modern
technology in our lives as well as in the legal system. To reiterate, it is
extremely importance to integrate DNA fingerprinting in our current
legislations in order to provide justice and efficiently combat the existing
issues in the current legal system of India.
The aforesaid existing issues
sometimes, render impossible the prevalence of justice amidst the growing
challenges that are a corollary of the dynamic technological advancements in
the world. For instance, in order for a male child to succeed to his family’s
estate, he needs to be legitimate son of his father and, legitimacy is
determined by Section 112 of Evidence Act[14],
which when incorporated was fair for the time being, but with the rapid
liberalization and advancements in scientific methods to determine the
legitimacy of a child, the provision seems rather antiquated and obscure. This
dilemma was faced in the case of Gautam
Kundu vs. Bengal[15],
wherein the Division Bench of the Hon’ble Supreme Court held that,
“(1) That courts in India cannot order blood test as a matter of course.
(2) There must be a strong prima facie case, in that the husband must
establish non -access in order to dispel the presumption arising under section
112 of the Evidence Act.
(3) No one can be compelled to give sample of blood for analysis.”
Nevertheless, in another case[16],
a Full Bench of the Hon’ble Supreme Court overruled the judgment in the Gautam Kundu[17]
case and it was established that the Court does not have the authority to
direct blood tests. Further, it was held that in interest of a child’s future,
the Court may issue such orders with specific cautions.
Furthermore, in the case of Bhabani Prasad Jena v. Convener Secretary, Orissa State Commission
for Women and Another[18],
the Apex Court held that the matter of DNA test in case of child parentage is
very delicate and sensitive. Further, two views of DNA fingerprinting were put
forth by the Supreme Court in the instant case, the first being, giving the
truth about parentage of the child and the second view being, violating the
right to privacy which can have a devastating effect on the child, such as the
test can culminate in the bastardization of the innocent child which can
adversely affect the mental health of the child and may even lead to
ostracization in especially conservative societies. Despite the adverse
effects, however, Courts are of the view that when required, the Courts may
order DNA tests to be done in the interest of the children, as was the case in
the matter of State Through C.B.I vs
Amaramani Tripathi[19],
wherein the court decided the legitimacy of the child on the basis of DNA
report, rather than Section 112 of Evidence Act[20].
The DNA analysis of a child’s
parentage can provide unchallengeable results which hold far more evidentiary
value than those under the provisions of Section 112, as the question of
parentage can lead to various disputes such as civil disputes related to
inheritance or maintenance disputes as under Section 125 of CrPC[21].
IV.
Arguments against the Inclusion of
DNA Fingerprinting in the Indian Legal System
Incorporation of DNA Fingerprinting
in the Legal System of India, however, has undeniably raised a lot of
objections in relation to violation of legal and fundamental rights as giving
DNA sample for fingerprinting can be interpreted as violation of the Right to
privacy[22]
as well as the Right against self-incrimination[23].
Owing to this, most judges continue to remain reluctant in granting
admissibility to the evidence extracted using the DNA Fingerprinting and rely
mostly on material evidence or witness statements. However, fundamental rights
are not absolute rights and are subjected to exception such as for public good
as was held in the case of Govind Singh
v. State of Madhya Pradesh[24].
Further, in various other cases, the Courts have held that DNA examinations or
medical examinations can be made without violating the fundamental rights of a
citizen, but the same remains open for debates and discussions in the public
domain. It can be inferred that this vague situation will most likely persist
unless a specific law is passed in this regard, clearly clarifying the
provisions related to DNA profiling.
In this frame of reference, it is
apposite to note that huge developments in DNA Fingerprinting have taken place,
most recently in the year 2011, when in a case, the Supreme Court ordered probe
in the matter when young man claimed to be the son of the former Chief Minister
of Uttar Pradesh, Mr. N.D. Tiwari, a contention which the latter vehemently rejected.
The Court ordered Mr. Tiwari to undergo a DNA test to determine the paternity
of the young boy. The advocates of Mr. Tiwari contended that undergoing forced
DNA test would amount to be an outright violation of the Right to Privacy of
Mr. Tiwari. To which, the Court responded that the DNA test shall be conducted
but, the results stay sealed and kept out of public record[25].
V.
Legality of Forensic Techniques in
India
In order to ascertain the legality of
forensic techniques such as DNA Fingerprinting in India, these techniques have
to undergo the litmus test, which entails the following: -
1)
Constitutional Validity of DNA Fingerprinting
As aforementioned, the
constitutional validity of DNA Fingerprinting can be challenged on the basis of
Right to privacy as well as Right against Self Incrimination. In response to
which, in the matter of State of Bombay
Vs Kathikalu[26], it was
categorically held that providing DNA samples and reports are not providing
Evidence against themselves, but essentially entails providing relevant facts
under the Evidence law[27].
Hence, it is does not fall within the purview of the Right against
self-incrimination.
2)
Evidentiary Value of the Forensic Information given by the Expert
As per the provisions of Section
45 of the Indian Evidence Act, it is a general rule that the person
having a special skill or expertise in a special field (here, DNA Expert) shall
be admissible in the court. The expert can run tests on the DNA fingerprint in
question and can help with the issues and/or relevant facts. In the case of Madan Gopal Kakkad vs. Naval Dubey and
Another[28], it was
held that the opinion given by an expert is admissible, and further, in case of
Machindra vs. Sajjan Galpha Rankhamb[29],
it was held that the opinion of the expert should be supported with convening
reasons.
3)
Judicial Stance on DNA Fingerprinting
Presently, barring
certain provisions such as Sections 53, 53A, 54, 164(A) of CrPC, India does not
have concrete legislations, rules or regulations that govern DNA fingerprinting
or any science and technology to that extent. Hence, it has been left to the
discretion of the judiciary to permit or disallow the entry of DNA
Fingerprinting into our legal system. This ambiguity around DNA Fingerprinting
often leads to uncertainty, giving rise to loopholes in the system and
inconsistencies among the different judicial branches in the country. It can be
inferred from the judgment in the case of State
of Bombay Vs Kathikalu[30], that
presently, the Indian judiciary is leaning towards deploying DNA Fingerprinting
in the legal system and has even adopted it at various levels. The legislative
machinery in the country, however, seems to be lagging behind amidst the
ever-growing scientific and technological innovations.
VI.
DNA in Criminal Cases
The argument that DNA fingerprinting
violates the “Right against Self-incrimination” has been rebutted by the
Constitution Bench of the Supreme Court in the case of Selvi v. State of Karnataka[31],
in which the court made the following observation: -
“The matching of DNA samples is
emerging as a vital tool for linking suspects to specific criminal acts. It may
also be recalled that as per the
majority decision in Kathi Kalu Oghad (AIR 1961 SC 1808), the use of material
samples such as fingerprints for the purpose of comparison and identification
does not amount to a testimonial act for the purpose of Article 20(3).
Hence, the taking and retention of DNA samples which are in the nature of
physical evidence does not face constitutional hurdles in the Indian context.”
In the instant case, the Supreme
Court clearly established hat DNA fingerprinting does not violate the “Right
against Self-Incrimination”. In fact, on the contrary, the Constitution
provides for the fundamental duty of
every citizen of India to develop the scientific temper, humanism and the
spirit of inquiry and reform.[32]
VII.
Conclusion
It is evident that, special
legislations are required to be focusing on admissibility and rules or
regulations regarding DNA fingerprinting in our legal system in order to ensure
that it is not subjected to the critical scanner of legality or public policy
in the future. Arguably, there still is ambiguity in the Indian Legal System
regarding the scientific and technological advancements. The Indian Legal
System sure has come a very long way since the stringent provisions of law were
first passed, yet it still has a very long way to go ahead to incorporate
within it, the recent technological advancements. Hence, there is an apparent
need to make DNA fingerprinting more accessible and more importantly,
admissible in the Courts of law. While there has been a sharp rise in the
number of judgements in matters of parentage where DNA profiling was used as
the means to ascertain the true parentage. Further, it can be put forth that,
it is one of the most effective scientific methods for giving results on the
parentage of the child. Further, it can be made use of in cases to establish
certainty around a particular crime, for instance, it can come to the rescue of
those being falsely accused in case and/or those erroneously convicted, for
witnesses can lie or evidences can be planted, but scientific proofs are hard
to negate. Further, there is an immediate need for India as a nation, to create
and maintain DNA database of every person in order to serve as an adequate
platform to run the DNA fingerprint against, in order for it to work, because
without that DNA is just a mobile without network.
DNA Fingerprint and profiling can
solve numerous cases if executed accurately and properly while providing speedy
justice to the victims, but it needs to be ensured that it is properly
regulated in order for the citizens to benefit from it because if unregulated,
it can be used against its intended purpose- as it can be misused by corrupt
DNA experts or medical practitioners as the DNA reports can tilt the case in
favor of any party when intended, it is proving to be one of the most powerful
tools in the pocket of an Advocate or an Officer. It can be said with certainty that proper
legislations around DNA fingerprinting will bring forth a new dawn in the era
of the Indian Legal System.
[1]Advocate Snigdha Sood, LL.M.
(2021-22) Panjab University, LL.B., Panjab University, Chandigarh M.A.
(English), University of Delhi B.A. (Hons.) English, University of Delhi
[2]
Ian Cobain, “Killer breakthrough – the day DNA evidence first nailed a
murderer”, The Guardian, 07/06/2017, available at https://www.theguardian.com/uk-news/2016/jun/07/killer-dna-evidence-genetic-profiling-criminal-investigation
[3]
Brigit Katz, “DNA Analysis Confirms Authenticity of Romanovs’ Remains”,
Smithsonian, 17/07/2018, available at https://www.smithsonianmag.com/smart-news/dna-analysis-confirms-authenticity-remains-attributed-romanovs-180969674/
[4]
Jeffreys AJ, Allen MJ, Hagelberg E, Sonnberg A. Identification of the skeletal
remains of Josef Mengele by DNA analysis. Forensic Sci Int. 1992
Sep;56(1):65-76. doi: 10.1016/0379-0738(92)90148-p. PMID: 1398379.
[5]
Joseph Neff, “They Did 30 Years for Someone Else’s Crime. Then Paid for It.”,
The New York Times, 07/04/2018, available at
https://www.nytimes.com/2018/04/07/us/mccollum-brown-exoneration.html
[6]
ACLU “DNA Testing and The Death Penalty” available at
https://www.aclu.org/other/dna-testing-and-death-penalty
[8]
Ashok Bhan, “DNA and the Indian System”, The Statesman, 07/06/2018, available
at https://www.thestatesman.com/supplements/law/dna-indian-system-1502645292.html
[10]
The Code of Criminal Procedure (Amendment) Act, 2005 (25 Of 2005)
[11]
Editor, “Constitutionality of Sec 53A Upheld” SCC Online, 17/12/2014, available
at
https://www.scconline.com/blog/post/2014/12/17/constitutionality-of-section-53-a-crpc-upheld/
[12]
Shreemad Jagadguru Shankaracharya v State of Karnataka, 2014 SCC Online Kar
5639
[13]
The Constitution of India, art 20(3)
[14]
Indian Evidence Act, 1872 (1 of 1872), s. 112
[17]
Ibid. 14
[18] Bhabani Prasad Jena
v.Convener Secretary, Orissa State Commission for Women and Another (2010) 8 SCC
633
[19]
State Through C.B.I vs Amaramani Tripathi Appeal (crl) 1248 of 2005
[20]
Ibid. 13
[22]
The Constitution of India, art 21
[23]
The Constitution of India, art 20(3)
[24]
Govind Singh v. State of Madhya Pradesh, AIR 1961 MP 320, 1961 12 STC 825 MP
[25]
PTI, “ND Tiwari has to undergo DNA Test: SC”, The Economic Times, 14/03/2011, available at https://economictimes.indiatimes.com/news/politics-and-nation/n-d-tiwari-has-to-undergo-dna-test-sc/articleshow/7702007.cms?from=mdr
[27]
Indian Evidence Act, 1872 (1 of 1872), s. 9, 11.
[29] Machindra vs. Sajjan
Galpha Rankhamb Criminal appeal number 1794
of 2013,D.O.J April 19,2017.J P.C Ghose and R.F.Nariman
[32] The Constitution of India, art 51A(h)
Article Information
ADMISSIBILITY OF DNA FINGERPRINTING IN THE INDIAN LEGAL SYSTEM
Authors: SNIGDHA SOOD
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/04
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.