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DNA Profiling and Indian Legal System

Following the current judicial trends on account of usage of forensic tools, our country is improving while adjudicating on both civil and criminal matters. In pursuit of truth, Indian judiciary is using forensic evidences such as, tracing fingerprints, post partum reports by medical experts, serology, toxicology, deontology, ballistics, DNA Profiling etc. This paper deals with the cases and relevant legal provisions covering the major issues in Forensic science such as ordering of DNA test by courts, DNA evidence in criminal cases for identification of victims and criminals and limitations of DNA profiling.

Introduction-
DNA profiling is not a new term for Indian Criminal Investigation, but certainly a direction-less one. DNA tests are admissible in India courts and over the time it has developed to a good level of accuracy. DNA (Deoxyribonucleic acid), is also known as the building block or genetic blueprint of life, was first described by the scientists Francis H. C. Crick and James D. Watson in 1953. The pattern of the compounds that constitute the DNA of an individual living being determines the development of that individual. DNA is the same in every cell throughout an individual's body, whether it is a skin cell, sperm cell, or blood cell.

With the exception of identical twins, no two individuals have the same DNA blueprint. DNA analysis, or DNA profiling, examines DNA found in physical evidence such as blood, hair, and semen, and determines whether it can be matched to DNA taken from specific individuals. DNA analysis has become a common form of evidence in criminal trials.

It is also used in civil litigation, particularly in cases involving the determination of Paternity of Identity the Supreme Court of the United States in Maryland v King[1] stated that-
The advent of DNA technology is one of the most significant scientific advancements of our era. The full potential for use of genetic markers in medicine and science is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed. since the first use of forensic DNA analysis to catch a rapist and murderer. the courts have acknowledged DNA testing Unparalleled ability to both exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigation practices.

DNA Test by the Court-

The basic issue that come forth to the judiciary while ordering for the DNA testing is that it may affect privacy or invade bodily integrity of a person resulting in compromising with the Rights to life with dignity. Hence, the Supreme Court of India, in Selvi v State of Karnataka[2] has made it mandatory to take consent from the court prior to conducting of forensic techniques like Narco Analysis as the statements of the subject are recorded under the influence of the drug administered to them, taking them to a trans-state for allegedly recording compulsive testimony. Thus, it is important for the court to maintain a balance between society and interest of justice.

In Rudresh @ Rudrachari v State of Karnataka[3] the issue was related to section 53A of Criminal Procedure Code where accused is being examined by the Medical Practitioner on the request of the police officer not below the rank of Sub-inspector. the question was whether the court can issue the order for conduction of scientific test like DNA under section 53 A crpc or is it strictly adhere to the request of the Police officer. On this question the High Court of Karnataka observed that-

The primary duty of the court is to ascertain the truth. Thus it is not correct to say that court or magistrate cannot direct or order the accused for medical examination as contemplated under Section 53 and 54 of the Code.

Drawing of the blood sample for the purpose of civil proceedings without the consent of the party is not desirable but drawing of the blood sample for detection of the offence of rape wherein the investigating agency has to establish its case beyond reasonable doubt cannot be termed as violative of Article 20(3) of the Constitution[4]. The law under the section 53 CrPC empowers the criminal courts to use reasonably necessary force to conduct forensic examination. Further, to prove innocence, Section 54 CrPC provides an opportunity to the accused to offer medical examination. In civil disputes, free and informed consent has greater relevance. In Rohit Shekhar v. Narayan Dutt Tiwari[5] the court ordered for the use of appropriate force to take the sample of blood as per the norms.

DNA evidence in criminal cases for victim identification-

In criminal matters, DNA profiling has not only helped in cracking cold cases and linking crimes with criminals but also aids in identification of victims in many cases. In many cases, the victims are being murdered with a general perspective of hiding the identity of the criminal and due to long lasting investigation procedures it becomes difficult to connect recovered body remains with the victim.

In such situations, DNA profiling proves to be a bane. it also assists in further proving the guilt or innocence of the accused but tempering with the DNA evidence may lead the case in wrong direction as a result of which courts are left with no other option except to give the benefit of doubt to the accused. An excellent instance for this was Santosh Kumar Singh v State through CBI[6] also known as Priyadarshini Mattoo case.

The tampering of evidence along with the shoddy investigation was the biggest hurdle faced by the prosecution in the trial. The clincher was that the DNA test proved rape but again that was being tampered during the investigation which creates a benefit of doubt situation for the accused. Despite many evidences favouring the Prosecution, the Trial Court acquitted the accused stating that CBI had failed on several counts namely concealing from the court that the evidences collected by it, were fabricated on behalf of the accused. Also proper procedure for conducting the DNA test, depriving the court of an opportunity to review it judicially.

The courts cannot afford to award the judgments based on ethical and moral grounds, rather basis should be purely legal in character which certainly lose its originality once being tampered, as a result of which justice remains incomplete.

Limitations of DNA Profiling-

The introduction of DNA profiling has posed some serious challenges to the legal rights of an individual such as Right to Privacy and Right against self-incrimination which is why its been declined as evidence by the Courts sometimes. Also, the admissibility of the DNA evidence before the court always depends on its accurate and proper collection, preservation and documentation which can satisfy the court that the evidence which has been put in front it is reliable.

There is no specific legislation present in India that can provide certain guidelines to the investigating agencies and the court, and the procedure to be adopted in the cases involving DNA as its evidence. However, some provisions allow examination of person accused of rape by medical practitioner and the medical examination of the rape victim respectively but the admissibility of these evidences has remained doubtful as the opinion of the Supreme Court and various High Courts in various decisions remained conflicting.

Judges do not deny the scientific accuracy and conclusiveness of DNA testing, but in some cases they do not admit these evidences on the ground of legal or constitutional prohibition and sometimes the public policy.

The Patna high court, in Rajiv Singh v. The State of Bihar[7] referred to OJ Simpson case[8] and noted the possible errors at various stages involved in DNA procedure and observed:
One of the lasting effects of the OJ Simpson case will likely be greater scrutiny by defence lawyers of the prosecution’s forensic DNA evidence presented in criminal cases. In the Simpson case, the defence, in essence, put the crime laboratory on trial.

There is no substantial dispute about the underlying scientific principles in DNA profiling, however, the adequacy of laboratory procedures and the competence of the experts who testify should remain open to inquiry. Although, there is a common consensus within the scientific community that DNA profiling can yield results with a very high probability, the complex procedure of DNA profiling is not without problems. At every phase of the seven-step procedure just described, mistakes and improper handling of the DNA-probe can produce false results which in some cases can lead to a life sentence or even death penalty judgement.

Therefore, the adequacy of laboratory procedures and the competence of the experts who testify should remain open to inquiry. The collection of biological evidence remains of utmost importance in forensic analysis. The manipulations or contamination of sample whether volunteer or negligently may vitiate the expert report.

Conclusion-
It can be safely concluded that the Supreme Court is yet to reflect with detailed insight on constitutional validity of various forensic tools for revealing the truth during investigation although there have been many cases whose conviction and innocence was based upon the DNA evidence. To make the technology of DNA profiling more reliable, the legislative and court have to come up with certain guidelines or legislation so that there will be lesser botched up investigation and so are the chances of miscarriage of justice.

End-Notes:

  1. 133 S.Ct. 1958 (2013).
  2. (2010) 7 SCC 263.
  3. 2014 (3) Crimes 575 (Kant.)
  4. Halappa v. State of Karnataka, 2010 Cri L J 4341.
  5. ILR (2010) Supp. (3) Del. 573.
  6. (2010) 9 SCC 747.
  7. 2014 SCC Online Pat 392 : MANU/BH/0143/2014.
  8. People of the State of California v. Orenthal James Simpson, 28 Loy. U. Chi. L. J. 461 (1997).

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