DNA & Indian Legal System

1) Introduction
- The DNA Fingerprinting technology is one of the foremost and most sought technologies used in developed nations for the identification of culprits through their respective unique DNA patterns.
2) The Nirbhaya Gang Rape case of 2012
3) Article 51A of the Constitution of India
4) The Identification of Prisoners Act, 1920
5) Case Law- Kalawati v. State of H.P
6) Case Law- Selvi & Ors. v. State of Karnataka, Supreme Court

The DNA Fingerprinting technology is one of the foremost and most sought technologies used in developed nations for identification of culprits through their respective unique DNA patterns. DNA as an evidence is key to justice delivery system in India. The conventional methods of investigation by the police are a passé being obsolete and unproductive. DNA profiling is not meant to replace other investigative techniques but to supplement them. DNA based technology can be a powerful tool for Law enforcement, and it is important that a robust process and structure is given to the collection of DNA samples from a crime scene to the laboratory for analysis, to the DNA Bank for storage and comparison, but this structure also needs to be fully cognisant of the rights of individuals and the potential for misuse of the technology.

The global criminal Law jurisprudence acknowledges DNA as a conclusive and accurate evidence in trials to pronounce a person guilty or innocent. The use of DNA as evidence in criminal investigations has grown in recent years in India. DNA testing has helped Law enforcement, identify criminals and solve difficult crimes. The Nirbhaya Gang Rape case of 2012 is a prime example where the important & indispensable role of forensic sciences in criminal jurisprudence was established and the Hon’ble Supreme Court of India convicted the accused. DNA is deoxyribonucleic acid, which is a long molecule that contains our unique genetic code. DNA can be considered as one of the building blocks of the body. Outside of identical twins, no two people have the same DNA pattern. It's the genetic code that determines all the characteristics of a living thing. Using a method called DNA testing, also known as DNA profiling, scientists analyze a long chain of DNA to identify specific “loci.”

These loci are very similar when you are comparing the loci of two closely related people, but among people unrelated, the differences are much greater. Coming to the constitutional framework, Article 51A of the Constitution of India directs the State to develop the scientific temper, humanism and the spirit of inquiry and reform and to strive towards excellence in all spheres of individual and collective activity. In India, DNA testing as evidence is not covered under Indian Evidence Act 1872 and Criminal Procedure Code 1973 expressly. The first reported case of DNA fingerprinting technology in India was that of Sh N.D Tiwari in which The Hon’ble Supreme Court directed Sh Tiwari to give his DNA sample and DNA was held to be a conclusive proof of him being biological father of Rohit Shekhar. However, till date reliance is placed on Section 112 for establishing the paternity of the child. Further,

The Identification of Prisoners Act, 1920 enables the Investigation Officers to collect finger print impressions, foot-print impressions from the suspect. The Code of Criminal Procedure (Amendment) Act, 2005 added two new sections namely, Section 53A and Section 164A, which authorize the investigating officer to collect DNA, sample from the body of the alleged suspect as well as the victim with the help of registered medical practitioner. The experts and centers for the DNA diagnostics are not expressly mentioned in Sec. 293(4) of Cr.P.C. There is a necessity to amend the provisions of the Code of Criminal Procedures, to include the scientists of this Institute in Sec. 293(4) Cr.P.C. and to treat their reports as evidence. Section-311A of The Code of Criminal Procedure empowers the Magistrate of First Class to direct any person, including an accused person, to give specimen signatures or handwriting in order to meet the ends of the justice. 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 which can provide specific guidelines to the investigating agencies and the court, and the procedure to be adopted in the cases involving DNA as its evidence.

Another issue with DNA profiling is whether it amounts to self-incrimination under Article 20(3) of The Constitution of India which reads as "No person accused of any offence shall be compelled to be a witness against himself". The Apex Court on various occasions interpreted the right against self-incrimination in the context of DNA profiling. In State of Bombay v. Kathi Kalu Oghad, The Hon’ble Supreme Court observed that self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge.

Thus, the giving of fingerprint impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness. In Kalawati v. State of H.P, the Supreme Court held that Article 20 (3) does not apply at all to a case where the confession is made by an accused without any inducement, threat, or promise. In Selvi & Ors. v. State of Karnataka, Supreme Court considered whether involuntary administration of certain scientific techniques like narco-analysis & polygraph examination attract the bar of Article 20(3) of the Constitution.

The court observed that the results obtained from the impugned tests bear a testimonial character and they cannot be categorized as material evidence such as bodily substances and other physical objects. The taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context. However, if the DNA profiling technique is further developed and used for testimonial purposes, then such uses in the future could face challenges in the judicial domain.

However it is to be noted that due to the difference of opinion in the bench, the matter is pending consideration. The Law Commission of India took into consideration various aspects of DNA profiling and drafted The DNA-Based Technology (Use and Regulation) Bill, 2018. The primary aim of the Bill is to collect the DNA data of individuals and use it for disaster victim identification, investigation of crimes, identification of missing persons and human remains and for medical research purposes.

The Bill proposes a National DNA Data Bank and Regional DNA Data Banks (for the states). The Data Banks will be responsible for storing DNA profiles received from the accredited laboratories. It also provides that the DNA experts may be specified as Government Scientific Experts and be notified as such under clause (g) of sub-section (4) of section 293 of Cr. P.C. The violators of the provisions would be liable for punishment of imprisonment, which may extend up to three years and also a fine which may extend up to Rs 2 Lacs. As society continues to rapidly become more and more data centric, and that data increasingly is a direct extension of the person, it is critical that legislation that is enacted has clear protections of rights.

Positive provisions in 2018 Bill include provisions for consent, defined instances for deletion of profiles, limitation on purpose of the use of data in the DNA Data Bank, defined instances for destruction of biological samples, and the ability for an individual to request a re-test. However, draft bill lacks provisions relating to accuracy, security and confidentiality of DNA information, timely removal and the right to appeal. The search for a perfect legislation has kept the entire subject ambiguous and at risk of being misused. It is better to adopt a Law and improve upon it than to postpone it without setting a time limit.