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DNA FINGERPRINTING AND ITS EVIDENTIARY VALUE
(Dr. Paramjit Kaur, Sr. Lecturer, Department of Laws,
Panjab University, Chandigarh)
INTRODUCTION
The period in which we are now living may go down in history as the ‘Age of DNA’. Undoubtedly, one of the most momentous recent achievement is the remarkable progress of science in unraveling the mysteries of the blue prints or recipes for life encoded in the human genome1. The discovery of DNA technology has not only led to formidable advances in medicine and genetic biology but has made an enormous impact on law in such areas as of forensic investigation.
DNA fingerprinting is the latest form of evidentiary tool in the hands of law enforcement personnel. Its application has proved to be of immense use for those involved in the administration of justice. It has tremendous potential to search truth in both civil and criminal cases. The technique of DNA testing and its application in various fields including its use for identification through scientific analysis of material evidence are now well established in developed countries. DNA evidence has proved to be as powerful for exonerating suspects as it is for convicting them. Undoubtedly, its application has resulted in crime detection with great efficiency.
THE SCIENTIFIC PROCESSES OF DNA FINGERPRINTING
DNA or deoxyribonucleic acid is a chemical messenger of genetic information found in all living cells. It may be found either in the nucleus or mitochondria of human cell and is unique. No two individuals, except of identical twins, share the same DNA pattern. It is the combination of half of the DNA of a person’s mother and half of father’s. It is identical throughout a person’s body, whether found in his blood, saliva, skin cells, bone, semen and even hair roots. Likewise it is stable too. It does not change over a time period, hence, even the old samples can be compared with the latest ones. It is often referred to as “blue print of life” because it contains the information needed to give us our physical characteristics and functional abilities2. It is due to these properties DNA has
become a useful identifier of persons.
Technologically, there have been developed mainly three types of DNA testing which are widely used for both science and legal identification purposes. Each testing protocol differs slightly from each other and has its own positive and negative points. Therefore, circumstances, such as the age, size and handling of the sample, determine what type of testing is used3. In the process of DNA analysis4, first of all it is isolated from cells or tissues of the body. Then the extracted DNA is cut into smaller fragments using a special class of enzyme called ‘restriction ‘enzymes’ or molecular scissors’. These fragments are then separated by a process known as ‘electrophoresis’. The DNA fragments are blotted from the gel into a nylon membrane. This process is called ‘Southern Blotting’. On addition of radioactive or coloured probe to the nylon sheet, a pattern called the DNA fingerprint is produced. The technology used here is known as Restriction Fragment Length Polymorphism (RFLP). However, this type of test requires a large quantity of DNA and the samples must not have been adulterated, tarnished and degraded by environmental factors, such as dirt or mould.
In Polymerase Chain Reaction (PCR) technique a scientist can replicate millions of exact copies of DNA contained in a biological sample without affecting the original sample. Since PCR requires only a minute quantity of the sample, it can also be used by laboratories to analyse highly degraded biological evidence for the DNA they contain. It has become one of the most widely used technique in crime laboratories around the world5. The most common PCR – based technique is the Short Tandem Repeat (STR) technology.
Biological evidence which lacks nucleated cells, such as hair shafts, bones, and teeth or those which have been so degraded and are not amenable to either RFLP or PCR testing, are examined by Mitochondrial DNA analysis (mt.DNA). This technique is useful in missing persons or unidentified – remains investigation, where there is a maternal
relative present who can provide the reference sample6.
One of the most recent type of DNA testing is the Y-chromosome analysis. In this technique markers are identified on the Y-chromosomes. Only male fraction of a biological sample is targeted. This technique is valuable in cases where there are multiple male contributors in a biological evidence sample. Y-chromosome testing may eventually eliminate the need for laboratories to extract and separate semen and vagina cells from i.e., vaginal swabs, prior to analysis7.
CONSTITUTIONALITY OF DNA EVIDENCE
In the constitution of India, Article 51A (h) and (j) declare that, it shall be the duty of every citizen of India “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 so that the nation constantly rises to the higher levels of endeavour and achievement”. In the light of the above constitutional provision it may be appropriate to mention that the entire forensic science is undergoing a rapid change and development due to the evolution of DNA technology. It is resulting in a radical impact on the administration of justice as well as on the rights of an individual. DNA evidence is now being accepted by courts in our country. In the absence of any special legislation in this regard, provisions of Evidence Act, 18728, relating to expert testimony cover the opinion given by an expert on DNA.
While dealing with cases relating to DNA evidence and blood testing there have been raised certain issues as to its admissibility. First of all the issue which comes for consideration is whether an accused or any person for that matter be compelled to give a blood sample for analysis? The landmark decision of the Supreme Court in Goutam Kundu v. State of West Bengal9 is a case wherein the appellant claimed a blood test of the child in order to establish that he was not the father of the child in order to consequently absolve himself of paying maintenance under Section 125 of the Criminal Procedure Code. The court held that courts in India cannot order blood tests as a matter of course. Wherever applications are made for such prayers in order to have a roving enquiry the prayer for blood test cannot be entertained. The court also held that no one can be compelled to give a sample of blood for analysis. Relying upon the above decision the Gujarat High Court in Haribhai Chanabhai Vora v. Keshubhai Haribhai Vora10 has held that a person cannot be compelled to submit himself for DNA test.
Recently, in Banarsi Dass v. Teeku Dutta11, wherein the core question involved was whether a direction for DNA test can be given in a proceeding for issuance of Succession Certificate under the Succession Act, 1925? Upholding the decision of the Delhi High Court12, the apex court held that DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given.
The technique and process of genetic fingerprinting is considered to have high probative properties. It is being used to generally confirm the identity of the suspect. This raises a question in respect of the right of an accused against self-incrimination guaranteed under the constitution. The suspect may even suspect the conduct and accuracy of the test if he doesn’t know about the procedures involved in such test13.
The pertinent question regarding the of constitutionality of taking a fingerprint came before the Supreme Court in the case of State of Bombay v. Kathikalu14. The court held that Article 20(3) of the constitution gives protection to a person not to be a witness against himself. However “to be a witness” is not equivalent to furnishing evidence” in its widest term and significance. Giving thumb or finger impression or exhibiting parts of the body by way of identification are not included in the expression “to be a witness”. Being a witness has been interpreted to mean imparting some sort of knowledge in testimony. In the light of the above decision of the Apex Court, it is submitted that there should not be any constitutional impediment in asking a person to give samples of his blood for DNA analysis. No doubts, he can be made aware of the procedures involved. The Rajasthan High Court in Swati Lodha v. State of Rajasthan15 has been of the view that a blood sample by itself is no testimony at all being wholly innocuous. It is only material for comparison, in order to lend assurance to the court that an inference based on other pieces of evidence is relevant. Consequently, the court held that taking of blood from the veins of an accused person does not amount to compelling an accused person to be a witness against himself. There is, thus no violation of Article 20(3) of the constitution.
Another related question in regard to blood testing is whether it violates right to privacy of a person. In the case of ‘X’ v. Hospital ‘2’16, on testing appellant’s blood sample it was found that he was HIV positive which resulted in calling off his proposed marriage. The question that arose was whether the hospital which was in possession of this information was duty bound to disclose these facts to the prospective wife. The Apex Court held that the right to privacy has been culled out of the provisions of Article 21 and other provisions of the Constitution. However, the right cannot be treated as an absolute right. It may be lawfully restricted for prevention of crime, disorder or protection of health and morals or protection of rights and freedom of others. The court observed that the lady was entitled to information regarding appellant’s medical condition, there was no infringement of the right to privacy. So, similar parameters can be applied in case of DNA testing too.
In Sharda v. Dharampal17, taking a positive view regarding the admissibility of medical evidence in cases relating to matrimonial disputes, the Supreme Court held that a matrimonial court has power to order a person to undergo medical test. Passing of an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. However, the court should exercise such a power if the applicant has a strong prima-facie case and there is sufficient material before the court. Finally, in the opinion of the court if, despite an order passed by the court, a person refuses to submit himself to such medical examination, an adverse inference can be drawn. With such directions of the Apex Court, a ray of hope is arisen so far as other types of biological tests are concerned. It helps the subordinate judiciary to view and review the matter before it on such dicta and take decisions accordingly18.
DNA EVIDENCE AND PARENTAGE IDENTIFICATION
DNA profile plays a significant role in parentage identification i.e., paternity and maternity. Parentage identification is necessary to prove the legitimacy of a child. Maternity identification by DNA test is done in child abandonment case and infanticide. Paternity identification comes into play in cases relating to maintenance, inheritance, rape, sexual relations with consent, incest if pregnancy could not be terminated when detected19.
Parentage testing refers to testing done to confirm or deny biological parentage of a particular child or individual. Such testing may be conducted by blood group or DNA analysis. DNA parentage testing may exclude a person as the biological parent of the child with certainty but it cannot prove absolutely that a person is the child’s biological parent. The test result can, however provide a probability that a person is the biological parent of the child and, if that probability is sufficiently high, an inference of parentage may be confidently drawn20.
Under our laws, to determine the paternity of the child, there is a statutory presumption enshrined in Section 112 of the Indian Evidence Act. It provides that the fact any person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten.
Before the advent of ‘DNA Technology’, the conventional method of blood grouping test was being resorted to for the purpose of ascertaining the paternity of the child. Now DNA testing may be used to rebut the said presumption arising under the Act, or to establish evidence in the circumstances where no presumption arises.
In the case of Kamti Devi v. Poshi Ram21, wherein the dispute was regarding the paternity of a child, the Supreme Court observed that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement with deoxyribonucleic acid (DNA) as well as ribonucleic acid were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g., if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebutable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such cases the law leans in the favour of the innocent child from being bastardized if his mother and his spouse were living together during the time of conception.
The above view of the honourable Apex Court in which it has taken the sociological aspect of the facts is appreciable. It is humbly submitted that there may be a situation where the husband and wife are not living together and the husband does have access to his wife and threatens her not to reveal the fact and later denies the fatherhood of the child by proving the non-access. In such cases, it would become necessary to conduct a test like DNA, of high probative value, which would certainly be in the interest of the child to determine his parentage. Undoubtedly, in all events, welfare of the concerned child should be the paramount consideration.
In Banarsi Dass,22 reiterating its view in Kamti Devi23, the Apex Court held that DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given. Basically the courts are of the view that if other relevant and admissible evidence, which is cogent and credible and of high evidentiary value is there, the parties should adduce the same in support of their claims than asking for DNA evidence in every case.
At the time when our Evidence Act was enacted the legislature did not contemplate the revolutionary change in society by virtue of development in science and technology. As per the need of the hour, recently, the Indian Evidence (Amendment) Bill 2003 has been proposed on the recommendation of the 185th Law Commission Report. In the Bill, proposal is there to revise Section 112 of the Act. It provides as follows:
“112. The fact that any child was born during the continuance of a valid marriage between its mother and any man, or within two hundred and eight days,
i) after the marriage was declared nullity, the mother remaining unmarried, or
ii) after the marriage was avoided by dissolution, the mother remaining unmarried.
shall be conclusive proof that such person is the legitimate child of that man, unless
a) it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten; or
b) it is conclusively established, by tests conducted at the expense of that man, namely,
i) medical tests, that, at the relevant time, that man was impotent or sterile, and is not the father of the child; or
ii) blood tests conducted with the consent of that man and his wife and in the case of the child, by permission of the court, that that man is not the father of the child; or
iii) DNA genetic printing tests conducted with the consent of that man and in the case of the child, by permission of the court, that that man is not the father of the child; and
Provided that the court is satisfied that the test under sub-clause (i) or sub-clause (ii) or sub-clause (iii) has been conducted in a scientific manner according to the accepted procedures, and in the case of each of these sub-clauses (i) or (ii) or (iii) of clause (b), at least two tests have been conducted, and they resulted in an identical verdict that man is not the father of the child.
Provided further that where the man refuses to undergo the tests under sub-clause (i) or (ii) or (iii) he shall, without prejudice to the provisions of clause (a), be deemed to have waived his defence to any claim of paternity made against him.
Explanation I: For the purpose of sub-clause (iii) of clause (b), the words ‘DNA genetic printing tests’ shall mean the tests conducted by way of samples relatable to the husband and child and the words ‘DNA’ mean ‘Deoxyribonucleic Acid’.
Explanation II: For the purposes of this section, the words ‘valid marriage’ shall mean a void marriage till it is declared nullity or a voidable marriage till it is avoided by dissolution, where, by any enactment for the time being in force, it is provided that the children of such marriage, which are declared nullity or avoided by dissolution, shall nevertheless be legitimate”.
It transpires from the above proposal that the law commission has recommended two more exceptions that where there is more stringent proof, conclusive proof will be the standard for the same. So, as for as DNA evidence is concerned, the Bill prescribes that a mismatch is a conclusive proof for the person not being the father.
DNA EVIDENCE AND CRIMINAL JUSTICE SYSTEM
In the criminal justice system like ours, efforts are made to search the truth vigilantly. Various methods of investigation, rules of evidence and criminal procedure are applied to convict the felons and protect the innocent. As long ago as in the mid sixteenth century in Buckley v. Rice Thomas24, Justice Saunders expressed the concern showed by law in accepting guidance from scientific expertise. He stated “… if matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is an honourable and commendable thing in our law. We approve of them and encourage them as things worthy of commendation”.
In developed countries, the DNA evidence is now a predominant forensic technique for identifying criminals when biological tissues are left at the scene of crime. DNA profiling on samples such as saliva, skin, blood hair or semen etc. not only helps to convict but also serves to exonerate.
The appropriate time has come for our courts also to show their willingness to open judicial door to modern biology. They can play an important role in helping to obtain access to evidence prior to testing, which is part of the screening process and helps in determining if DNA evidence will be relevant to the case. In the cases of homicide and rape, DNA finger printed evidence can be a decisive and clinching factor. DNA evidence may not prove beyond doubt that a person was at the place of crime and he has committed the crime, but it can certainly be a piece of evidence that can help in identifying defendant to corroborate the eye-witness testimony and other evidence.
In criminal cases, during investigation, evidence sample is collected by the crime investigating authorities from the body of the victim for traces of DNA coming from the suspect. The evidence sample is matched with a reference sample taken from the suspect and the victim. The purpose of the DNA test is to determine the existence of an association, or a match between the evidence sample and the reference sample25.
Our judiciary has started accepting biological evidence though the number of cases is negligible. One such instances of DNA profiling / finger printing evidence has been made admissible in the case of Chandradevi v. State of Tamil Nadu26. In this case there was involved rape and murder of several teenage girls in the ashram of a god-man Premananda Alias Ravi, by the god man and his accomplices. In a lengthy judgement the Madras High Court considered four important questions:
1) Whether the DNA evidence is generally accepted by the scientific community?
2) Whether the testing procedure used in this case is generally accepted as reliable if performed properly?
3) Whether the tests were performed properly in this case?
4) Whether the conclusion reached in this case is acceptable?
In answering the first question reliance was placed by the court on the extent to which courts in the United States had relied on evidence of DNA analysis. The rest of the questions were all answered in the affirmative and the accused person were convicted on various counts on the basis of the evidence of experts on DNA finger printing and other evidence27.
On the other hand in M.V. Mahesh v. State of Karnataka28, the accused was alleged of causing death of his pregnant wife by poisoning her and cutting her body to small pieces and scattering flesh in the forest area. Karnataka High Court acquitted the accused. One of the grounds of acquittal was that the requisite amount of DNA of higher molecular weight was not present so as to make the test results sufficiently conclusive and accurate. The court further held that the DNA test was not a fool proof one and expressed the fact that there were no national standards set or established for DNA testing in our country.
A perusal of the above decisions shows that the scrutiny made by the courts of the DNA testing is commendable. Where the test was proper, reliable and acceptable, the guilty were convicted and on other hand in case of any doubt arising out of procedural irregularities or malpractices in the scientific processes, the benefit of doubt should go to the accused. In Chandan Panalal Jaiswal v. State of Gujarat29, it was admitted by the court that there is possibility of laboratory errors. It was said that irrespective of the request made by the accused the courts are supposed to ensure the laboratory accuracy and should also focus while granting such permission and asking the present accused to undergo DNA fingerprinting test / analysis on the aspect of laboratory error. So, a likelihood ratio should be used instead of declaring a match. It was also observed by the court that human beings can make mistakes. Laboratory error, therefore, might result in finding30.
POSITION IN OTHER COUNTRIES: AN OVERVIEW
DNA technology, in developed countries started developing almost two decades ago. At the close of the last century, DNA evidence, in one form or the other, was admissible in every State and Federal Circuit in the United states. These developments are remarkable. No other scientific techniques had gained such widespread acceptance so quickly. Even its critics acknowledged that appropriately carried out and correctly interpreted, DNA typing is possibly the most powerful innovation in the forensics since the development of finger printing in the last part of the nineteenth century31. In 1993, the U.S. Supreme Court in its landmark case, Daubert v. Merrell Dow Pharmaceuticals32 held that in order for scientific evidence to be admissible it must (1) be shown to be scientifically valid and (2) must be relevant to at least one issue in the case33. Law enforcement officers and lawyers soon realized that DNA could become a useful complement to or even replacement for, traditional fingerprint evidence34.
Regarding the legislations in other countries it would be worthwhile to mention that advanced countries are quite advanced in their legal matters too (legislations). In the United States, DNA typing standards have been laid down by DNA Advisory Board in DNA Identification Act of 1994. Canada has passed DNA Identification Act, 2000. In the recent past Advancing Justice through DNA technology Act of 2003 has been enacted in the USA. By this act imperative amendments have been made in the above Act of 1994. Britain too has Criminal Justice and Public Order Act 1994, which allows for sampling and storing of DNA from any individual who has been convicted, cautioned, or suspected of committing a recordable offence. It provides for forceful testing of blood samples35. This would certainly be helping the investigating authorities to take blood samples for tests. Like officials in the United Kingdom and the United States, legislatures in Australia, China and New Zealand have realized the immense law enforcement potential of DNA and have begun to examine the possibilities of investigative DNA databanks36.
CONCLUSIONS AND SUGGESTIONS
DNA fingerprinting / profiling / testing is being accepted all over the world. It is an excellent example of the ‘union’ between science and law and of the ever increasing role that is being played by science in the successful solving of civil and criminal cases. It has opened up new scope for establishing the identity of the perpetrators of crime. Now identity of suspects can be established by comparison of sample. DNA fingerprinting can be used not only for securing the conviction but also to exonerate persons who would have been wrongfully accused or convicted. The National Institute of Justice under the guidance of Former Attorney General Janet Reno, issued a report in 1996, entitled, “Convicted by Juries, Exonerated by Science: Case Studies on the Use of DNA Evidence to Establish Innocence After Trial”, stressing importance of the use of DNA evidence to establish innocence and to exonerate the innocent37. DNA evidence has the capability to amplify the accuracy of verdicts in criminal trials especially when used as corroborative evidence.
For the successful incorporation of the technique of DNA fingerprinting in our legal system, various scientific and legal reforms are required to be made. The time has come that suitable amendments be made in the Indian Evidence Act and other related legislations. An endeavour has already been made by proposing “The Indian Evidence (Amendment) Bill, 2003”. As observed earlier, most of the times, the courts have expressed their inability in giving any order for DNA examination or even for blood test because of the constitutional impediments. Undoubtedly, a person who has committed the crime would never volunteer to give blood sample as he knows that it will convict him. In developed countries like Canada and Britain forcible blood examination is permitted to serve the ends of justice.
Drafting of an appropriate legislation regarding all issues relating to DNA profiling and safeguarding the rights of individuals thereunder is the need of the hour. Such a legislation is required to provide that DNA testing be done under the authorization and supervision of the courts. This would ensure the accuracy and reliability of evidence before them. Such an option would make DNA testing subject to a court order and would enable the courts to provide independent oversight of testing, including in relation to the validity of consent, particularly in parentage testing38.
For the extensive use and realization of full potential of DNA technology in administration of criminal justice system, certain steps of utmost importance are required to be taken. The law enforcement agencies dealing with the matters relating to crime investigation and detection, be imparted the requisite training of identification and collection of DNA evidence from the place of occurrence. For such scientific investigation, personnel from forensic laboratories be associated with the investigating agencies. This would enable the samples of blood, hair, semen, saliva and other material at the scene of crime to clinch evidence in a better form to convict the guilty and protect the innocent.
The main concern which must be at the forefront of the scientific and legal community’s conscience while conducting DNA analysis is that laboratories must remain unadulterated and impeccable, because careless mistakes and sloppiness can create paramount errors. Proficiency tests have to be put in place to guarantee that laboratory practice is up to that39. Certain eligibility criteria be prescribed for the scientists conducting DNA tests. Scientists need to make clear to the legal community exactly what these tests do40. Special training sessions are required for judges, lawyers and all who are involved in the administration of justice. This would help them to appreciate the probative value of new standards and concepts of scientific evidence. On the otherside, in appropriate cases where the defendant/accused is unable to defend the scientific evidence due to ignorance or poverty, necessary advice and aid could be provided to him by the State. The scientific technologies that provide efficient and effective DNA evidence would search the truth and get the innocent exonerated.
Fortunately, we have the benefit of having scientific intelligentsia and advanced legal intellect which can assist the Parliament in making suitable legislation in the fields of forensic science, DNA technology, DNA database, court procedures and other related aspects, so that exclusive enactments are legislated in this regard. Committees be constituted to assess the ethical, legal and other social issues raised by development and use of such technologies. National commission and policies should be made to abridge the gap between the scientific analysis and presentation of the evidence in the courts.
In the developed countries, given the tremendous power and versatility of DNA technology, DNA has become not only an important discovery of the scientific and genetic biology world, but it also has provided great advances in the legal community41.
In appropriate cases, courts should not be reluctant to rule on the admissibility of DNA evidence. Results of science when competently obtained, should be applied by the courts, in aid of situations presented before them. To reject such results would be to deny progress and also justice to the concerned. By keeping a balance between the system based on scientific technology and our existing value based system, we can effectively utilize the benefit of such scientific advancements by suitably modifying our administration of justice system, by remaining within the gamut of the existing legal framework.
(Dr. Paramjit Kaur, Sr. Lecturer, Department of Laws,
Panjab University, Chandigarh)
INTRODUCTION
The period in which we are now living may go down in history as the ‘Age of DNA’. Undoubtedly, one of the most momentous recent achievement is the remarkable progress of science in unraveling the mysteries of the blue prints or recipes for life encoded in the human genome1. The discovery of DNA technology has not only led to formidable advances in medicine and genetic biology but has made an enormous impact on law in such areas as of forensic investigation.
DNA fingerprinting is the latest form of evidentiary tool in the hands of law enforcement personnel. Its application has proved to be of immense use for those involved in the administration of justice. It has tremendous potential to search truth in both civil and criminal cases. The technique of DNA testing and its application in various fields including its use for identification through scientific analysis of material evidence are now well established in developed countries. DNA evidence has proved to be as powerful for exonerating suspects as it is for convicting them. Undoubtedly, its application has resulted in crime detection with great efficiency.
THE SCIENTIFIC PROCESSES OF DNA FINGERPRINTING
DNA or deoxyribonucleic acid is a chemical messenger of genetic information found in all living cells. It may be found either in the nucleus or mitochondria of human cell and is unique. No two individuals, except of identical twins, share the same DNA pattern. It is the combination of half of the DNA of a person’s mother and half of father’s. It is identical throughout a person’s body, whether found in his blood, saliva, skin cells, bone, semen and even hair roots. Likewise it is stable too. It does not change over a time period, hence, even the old samples can be compared with the latest ones. It is often referred to as “blue print of life” because it contains the information needed to give us our physical characteristics and functional abilities2. It is due to these properties DNA has
become a useful identifier of persons.
Technologically, there have been developed mainly three types of DNA testing which are widely used for both science and legal identification purposes. Each testing protocol differs slightly from each other and has its own positive and negative points. Therefore, circumstances, such as the age, size and handling of the sample, determine what type of testing is used3. In the process of DNA analysis4, first of all it is isolated from cells or tissues of the body. Then the extracted DNA is cut into smaller fragments using a special class of enzyme called ‘restriction ‘enzymes’ or molecular scissors’. These fragments are then separated by a process known as ‘electrophoresis’. The DNA fragments are blotted from the gel into a nylon membrane. This process is called ‘Southern Blotting’. On addition of radioactive or coloured probe to the nylon sheet, a pattern called the DNA fingerprint is produced. The technology used here is known as Restriction Fragment Length Polymorphism (RFLP). However, this type of test requires a large quantity of DNA and the samples must not have been adulterated, tarnished and degraded by environmental factors, such as dirt or mould.
In Polymerase Chain Reaction (PCR) technique a scientist can replicate millions of exact copies of DNA contained in a biological sample without affecting the original sample. Since PCR requires only a minute quantity of the sample, it can also be used by laboratories to analyse highly degraded biological evidence for the DNA they contain. It has become one of the most widely used technique in crime laboratories around the world5. The most common PCR – based technique is the Short Tandem Repeat (STR) technology.
Biological evidence which lacks nucleated cells, such as hair shafts, bones, and teeth or those which have been so degraded and are not amenable to either RFLP or PCR testing, are examined by Mitochondrial DNA analysis (mt.DNA). This technique is useful in missing persons or unidentified – remains investigation, where there is a maternal
relative present who can provide the reference sample6.
One of the most recent type of DNA testing is the Y-chromosome analysis. In this technique markers are identified on the Y-chromosomes. Only male fraction of a biological sample is targeted. This technique is valuable in cases where there are multiple male contributors in a biological evidence sample. Y-chromosome testing may eventually eliminate the need for laboratories to extract and separate semen and vagina cells from i.e., vaginal swabs, prior to analysis7.
CONSTITUTIONALITY OF DNA EVIDENCE
In the constitution of India, Article 51A (h) and (j) declare that, it shall be the duty of every citizen of India “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 so that the nation constantly rises to the higher levels of endeavour and achievement”. In the light of the above constitutional provision it may be appropriate to mention that the entire forensic science is undergoing a rapid change and development due to the evolution of DNA technology. It is resulting in a radical impact on the administration of justice as well as on the rights of an individual. DNA evidence is now being accepted by courts in our country. In the absence of any special legislation in this regard, provisions of Evidence Act, 18728, relating to expert testimony cover the opinion given by an expert on DNA.
While dealing with cases relating to DNA evidence and blood testing there have been raised certain issues as to its admissibility. First of all the issue which comes for consideration is whether an accused or any person for that matter be compelled to give a blood sample for analysis? The landmark decision of the Supreme Court in Goutam Kundu v. State of West Bengal9 is a case wherein the appellant claimed a blood test of the child in order to establish that he was not the father of the child in order to consequently absolve himself of paying maintenance under Section 125 of the Criminal Procedure Code. The court held that courts in India cannot order blood tests as a matter of course. Wherever applications are made for such prayers in order to have a roving enquiry the prayer for blood test cannot be entertained. The court also held that no one can be compelled to give a sample of blood for analysis. Relying upon the above decision the Gujarat High Court in Haribhai Chanabhai Vora v. Keshubhai Haribhai Vora10 has held that a person cannot be compelled to submit himself for DNA test.
Recently, in Banarsi Dass v. Teeku Dutta11, wherein the core question involved was whether a direction for DNA test can be given in a proceeding for issuance of Succession Certificate under the Succession Act, 1925? Upholding the decision of the Delhi High Court12, the apex court held that DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given.
The technique and process of genetic fingerprinting is considered to have high probative properties. It is being used to generally confirm the identity of the suspect. This raises a question in respect of the right of an accused against self-incrimination guaranteed under the constitution. The suspect may even suspect the conduct and accuracy of the test if he doesn’t know about the procedures involved in such test13.
The pertinent question regarding the of constitutionality of taking a fingerprint came before the Supreme Court in the case of State of Bombay v. Kathikalu14. The court held that Article 20(3) of the constitution gives protection to a person not to be a witness against himself. However “to be a witness” is not equivalent to furnishing evidence” in its widest term and significance. Giving thumb or finger impression or exhibiting parts of the body by way of identification are not included in the expression “to be a witness”. Being a witness has been interpreted to mean imparting some sort of knowledge in testimony. In the light of the above decision of the Apex Court, it is submitted that there should not be any constitutional impediment in asking a person to give samples of his blood for DNA analysis. No doubts, he can be made aware of the procedures involved. The Rajasthan High Court in Swati Lodha v. State of Rajasthan15 has been of the view that a blood sample by itself is no testimony at all being wholly innocuous. It is only material for comparison, in order to lend assurance to the court that an inference based on other pieces of evidence is relevant. Consequently, the court held that taking of blood from the veins of an accused person does not amount to compelling an accused person to be a witness against himself. There is, thus no violation of Article 20(3) of the constitution.
Another related question in regard to blood testing is whether it violates right to privacy of a person. In the case of ‘X’ v. Hospital ‘2’16, on testing appellant’s blood sample it was found that he was HIV positive which resulted in calling off his proposed marriage. The question that arose was whether the hospital which was in possession of this information was duty bound to disclose these facts to the prospective wife. The Apex Court held that the right to privacy has been culled out of the provisions of Article 21 and other provisions of the Constitution. However, the right cannot be treated as an absolute right. It may be lawfully restricted for prevention of crime, disorder or protection of health and morals or protection of rights and freedom of others. The court observed that the lady was entitled to information regarding appellant’s medical condition, there was no infringement of the right to privacy. So, similar parameters can be applied in case of DNA testing too.
In Sharda v. Dharampal17, taking a positive view regarding the admissibility of medical evidence in cases relating to matrimonial disputes, the Supreme Court held that a matrimonial court has power to order a person to undergo medical test. Passing of an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. However, the court should exercise such a power if the applicant has a strong prima-facie case and there is sufficient material before the court. Finally, in the opinion of the court if, despite an order passed by the court, a person refuses to submit himself to such medical examination, an adverse inference can be drawn. With such directions of the Apex Court, a ray of hope is arisen so far as other types of biological tests are concerned. It helps the subordinate judiciary to view and review the matter before it on such dicta and take decisions accordingly18.
DNA EVIDENCE AND PARENTAGE IDENTIFICATION
DNA profile plays a significant role in parentage identification i.e., paternity and maternity. Parentage identification is necessary to prove the legitimacy of a child. Maternity identification by DNA test is done in child abandonment case and infanticide. Paternity identification comes into play in cases relating to maintenance, inheritance, rape, sexual relations with consent, incest if pregnancy could not be terminated when detected19.
Parentage testing refers to testing done to confirm or deny biological parentage of a particular child or individual. Such testing may be conducted by blood group or DNA analysis. DNA parentage testing may exclude a person as the biological parent of the child with certainty but it cannot prove absolutely that a person is the child’s biological parent. The test result can, however provide a probability that a person is the biological parent of the child and, if that probability is sufficiently high, an inference of parentage may be confidently drawn20.
Under our laws, to determine the paternity of the child, there is a statutory presumption enshrined in Section 112 of the Indian Evidence Act. It provides that the fact any person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten.
Before the advent of ‘DNA Technology’, the conventional method of blood grouping test was being resorted to for the purpose of ascertaining the paternity of the child. Now DNA testing may be used to rebut the said presumption arising under the Act, or to establish evidence in the circumstances where no presumption arises.
In the case of Kamti Devi v. Poshi Ram21, wherein the dispute was regarding the paternity of a child, the Supreme Court observed that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement with deoxyribonucleic acid (DNA) as well as ribonucleic acid were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g., if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebutable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such cases the law leans in the favour of the innocent child from being bastardized if his mother and his spouse were living together during the time of conception.
The above view of the honourable Apex Court in which it has taken the sociological aspect of the facts is appreciable. It is humbly submitted that there may be a situation where the husband and wife are not living together and the husband does have access to his wife and threatens her not to reveal the fact and later denies the fatherhood of the child by proving the non-access. In such cases, it would become necessary to conduct a test like DNA, of high probative value, which would certainly be in the interest of the child to determine his parentage. Undoubtedly, in all events, welfare of the concerned child should be the paramount consideration.
In Banarsi Dass,22 reiterating its view in Kamti Devi23, the Apex Court held that DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given. Basically the courts are of the view that if other relevant and admissible evidence, which is cogent and credible and of high evidentiary value is there, the parties should adduce the same in support of their claims than asking for DNA evidence in every case.
At the time when our Evidence Act was enacted the legislature did not contemplate the revolutionary change in society by virtue of development in science and technology. As per the need of the hour, recently, the Indian Evidence (Amendment) Bill 2003 has been proposed on the recommendation of the 185th Law Commission Report. In the Bill, proposal is there to revise Section 112 of the Act. It provides as follows:
“112. The fact that any child was born during the continuance of a valid marriage between its mother and any man, or within two hundred and eight days,
i) after the marriage was declared nullity, the mother remaining unmarried, or
ii) after the marriage was avoided by dissolution, the mother remaining unmarried.
shall be conclusive proof that such person is the legitimate child of that man, unless
a) it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten; or
b) it is conclusively established, by tests conducted at the expense of that man, namely,
i) medical tests, that, at the relevant time, that man was impotent or sterile, and is not the father of the child; or
ii) blood tests conducted with the consent of that man and his wife and in the case of the child, by permission of the court, that that man is not the father of the child; or
iii) DNA genetic printing tests conducted with the consent of that man and in the case of the child, by permission of the court, that that man is not the father of the child; and
Provided that the court is satisfied that the test under sub-clause (i) or sub-clause (ii) or sub-clause (iii) has been conducted in a scientific manner according to the accepted procedures, and in the case of each of these sub-clauses (i) or (ii) or (iii) of clause (b), at least two tests have been conducted, and they resulted in an identical verdict that man is not the father of the child.
Provided further that where the man refuses to undergo the tests under sub-clause (i) or (ii) or (iii) he shall, without prejudice to the provisions of clause (a), be deemed to have waived his defence to any claim of paternity made against him.
Explanation I: For the purpose of sub-clause (iii) of clause (b), the words ‘DNA genetic printing tests’ shall mean the tests conducted by way of samples relatable to the husband and child and the words ‘DNA’ mean ‘Deoxyribonucleic Acid’.
Explanation II: For the purposes of this section, the words ‘valid marriage’ shall mean a void marriage till it is declared nullity or a voidable marriage till it is avoided by dissolution, where, by any enactment for the time being in force, it is provided that the children of such marriage, which are declared nullity or avoided by dissolution, shall nevertheless be legitimate”.
It transpires from the above proposal that the law commission has recommended two more exceptions that where there is more stringent proof, conclusive proof will be the standard for the same. So, as for as DNA evidence is concerned, the Bill prescribes that a mismatch is a conclusive proof for the person not being the father.
DNA EVIDENCE AND CRIMINAL JUSTICE SYSTEM
In the criminal justice system like ours, efforts are made to search the truth vigilantly. Various methods of investigation, rules of evidence and criminal procedure are applied to convict the felons and protect the innocent. As long ago as in the mid sixteenth century in Buckley v. Rice Thomas24, Justice Saunders expressed the concern showed by law in accepting guidance from scientific expertise. He stated “… if matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is an honourable and commendable thing in our law. We approve of them and encourage them as things worthy of commendation”.
In developed countries, the DNA evidence is now a predominant forensic technique for identifying criminals when biological tissues are left at the scene of crime. DNA profiling on samples such as saliva, skin, blood hair or semen etc. not only helps to convict but also serves to exonerate.
The appropriate time has come for our courts also to show their willingness to open judicial door to modern biology. They can play an important role in helping to obtain access to evidence prior to testing, which is part of the screening process and helps in determining if DNA evidence will be relevant to the case. In the cases of homicide and rape, DNA finger printed evidence can be a decisive and clinching factor. DNA evidence may not prove beyond doubt that a person was at the place of crime and he has committed the crime, but it can certainly be a piece of evidence that can help in identifying defendant to corroborate the eye-witness testimony and other evidence.
In criminal cases, during investigation, evidence sample is collected by the crime investigating authorities from the body of the victim for traces of DNA coming from the suspect. The evidence sample is matched with a reference sample taken from the suspect and the victim. The purpose of the DNA test is to determine the existence of an association, or a match between the evidence sample and the reference sample25.
Our judiciary has started accepting biological evidence though the number of cases is negligible. One such instances of DNA profiling / finger printing evidence has been made admissible in the case of Chandradevi v. State of Tamil Nadu26. In this case there was involved rape and murder of several teenage girls in the ashram of a god-man Premananda Alias Ravi, by the god man and his accomplices. In a lengthy judgement the Madras High Court considered four important questions:
1) Whether the DNA evidence is generally accepted by the scientific community?
2) Whether the testing procedure used in this case is generally accepted as reliable if performed properly?
3) Whether the tests were performed properly in this case?
4) Whether the conclusion reached in this case is acceptable?
In answering the first question reliance was placed by the court on the extent to which courts in the United States had relied on evidence of DNA analysis. The rest of the questions were all answered in the affirmative and the accused person were convicted on various counts on the basis of the evidence of experts on DNA finger printing and other evidence27.
On the other hand in M.V. Mahesh v. State of Karnataka28, the accused was alleged of causing death of his pregnant wife by poisoning her and cutting her body to small pieces and scattering flesh in the forest area. Karnataka High Court acquitted the accused. One of the grounds of acquittal was that the requisite amount of DNA of higher molecular weight was not present so as to make the test results sufficiently conclusive and accurate. The court further held that the DNA test was not a fool proof one and expressed the fact that there were no national standards set or established for DNA testing in our country.
A perusal of the above decisions shows that the scrutiny made by the courts of the DNA testing is commendable. Where the test was proper, reliable and acceptable, the guilty were convicted and on other hand in case of any doubt arising out of procedural irregularities or malpractices in the scientific processes, the benefit of doubt should go to the accused. In Chandan Panalal Jaiswal v. State of Gujarat29, it was admitted by the court that there is possibility of laboratory errors. It was said that irrespective of the request made by the accused the courts are supposed to ensure the laboratory accuracy and should also focus while granting such permission and asking the present accused to undergo DNA fingerprinting test / analysis on the aspect of laboratory error. So, a likelihood ratio should be used instead of declaring a match. It was also observed by the court that human beings can make mistakes. Laboratory error, therefore, might result in finding30.
POSITION IN OTHER COUNTRIES: AN OVERVIEW
DNA technology, in developed countries started developing almost two decades ago. At the close of the last century, DNA evidence, in one form or the other, was admissible in every State and Federal Circuit in the United states. These developments are remarkable. No other scientific techniques had gained such widespread acceptance so quickly. Even its critics acknowledged that appropriately carried out and correctly interpreted, DNA typing is possibly the most powerful innovation in the forensics since the development of finger printing in the last part of the nineteenth century31. In 1993, the U.S. Supreme Court in its landmark case, Daubert v. Merrell Dow Pharmaceuticals32 held that in order for scientific evidence to be admissible it must (1) be shown to be scientifically valid and (2) must be relevant to at least one issue in the case33. Law enforcement officers and lawyers soon realized that DNA could become a useful complement to or even replacement for, traditional fingerprint evidence34.
Regarding the legislations in other countries it would be worthwhile to mention that advanced countries are quite advanced in their legal matters too (legislations). In the United States, DNA typing standards have been laid down by DNA Advisory Board in DNA Identification Act of 1994. Canada has passed DNA Identification Act, 2000. In the recent past Advancing Justice through DNA technology Act of 2003 has been enacted in the USA. By this act imperative amendments have been made in the above Act of 1994. Britain too has Criminal Justice and Public Order Act 1994, which allows for sampling and storing of DNA from any individual who has been convicted, cautioned, or suspected of committing a recordable offence. It provides for forceful testing of blood samples35. This would certainly be helping the investigating authorities to take blood samples for tests. Like officials in the United Kingdom and the United States, legislatures in Australia, China and New Zealand have realized the immense law enforcement potential of DNA and have begun to examine the possibilities of investigative DNA databanks36.
CONCLUSIONS AND SUGGESTIONS
DNA fingerprinting / profiling / testing is being accepted all over the world. It is an excellent example of the ‘union’ between science and law and of the ever increasing role that is being played by science in the successful solving of civil and criminal cases. It has opened up new scope for establishing the identity of the perpetrators of crime. Now identity of suspects can be established by comparison of sample. DNA fingerprinting can be used not only for securing the conviction but also to exonerate persons who would have been wrongfully accused or convicted. The National Institute of Justice under the guidance of Former Attorney General Janet Reno, issued a report in 1996, entitled, “Convicted by Juries, Exonerated by Science: Case Studies on the Use of DNA Evidence to Establish Innocence After Trial”, stressing importance of the use of DNA evidence to establish innocence and to exonerate the innocent37. DNA evidence has the capability to amplify the accuracy of verdicts in criminal trials especially when used as corroborative evidence.
For the successful incorporation of the technique of DNA fingerprinting in our legal system, various scientific and legal reforms are required to be made. The time has come that suitable amendments be made in the Indian Evidence Act and other related legislations. An endeavour has already been made by proposing “The Indian Evidence (Amendment) Bill, 2003”. As observed earlier, most of the times, the courts have expressed their inability in giving any order for DNA examination or even for blood test because of the constitutional impediments. Undoubtedly, a person who has committed the crime would never volunteer to give blood sample as he knows that it will convict him. In developed countries like Canada and Britain forcible blood examination is permitted to serve the ends of justice.
Drafting of an appropriate legislation regarding all issues relating to DNA profiling and safeguarding the rights of individuals thereunder is the need of the hour. Such a legislation is required to provide that DNA testing be done under the authorization and supervision of the courts. This would ensure the accuracy and reliability of evidence before them. Such an option would make DNA testing subject to a court order and would enable the courts to provide independent oversight of testing, including in relation to the validity of consent, particularly in parentage testing38.
For the extensive use and realization of full potential of DNA technology in administration of criminal justice system, certain steps of utmost importance are required to be taken. The law enforcement agencies dealing with the matters relating to crime investigation and detection, be imparted the requisite training of identification and collection of DNA evidence from the place of occurrence. For such scientific investigation, personnel from forensic laboratories be associated with the investigating agencies. This would enable the samples of blood, hair, semen, saliva and other material at the scene of crime to clinch evidence in a better form to convict the guilty and protect the innocent.
The main concern which must be at the forefront of the scientific and legal community’s conscience while conducting DNA analysis is that laboratories must remain unadulterated and impeccable, because careless mistakes and sloppiness can create paramount errors. Proficiency tests have to be put in place to guarantee that laboratory practice is up to that39. Certain eligibility criteria be prescribed for the scientists conducting DNA tests. Scientists need to make clear to the legal community exactly what these tests do40. Special training sessions are required for judges, lawyers and all who are involved in the administration of justice. This would help them to appreciate the probative value of new standards and concepts of scientific evidence. On the otherside, in appropriate cases where the defendant/accused is unable to defend the scientific evidence due to ignorance or poverty, necessary advice and aid could be provided to him by the State. The scientific technologies that provide efficient and effective DNA evidence would search the truth and get the innocent exonerated.
Fortunately, we have the benefit of having scientific intelligentsia and advanced legal intellect which can assist the Parliament in making suitable legislation in the fields of forensic science, DNA technology, DNA database, court procedures and other related aspects, so that exclusive enactments are legislated in this regard. Committees be constituted to assess the ethical, legal and other social issues raised by development and use of such technologies. National commission and policies should be made to abridge the gap between the scientific analysis and presentation of the evidence in the courts.
In the developed countries, given the tremendous power and versatility of DNA technology, DNA has become not only an important discovery of the scientific and genetic biology world, but it also has provided great advances in the legal community41.
In appropriate cases, courts should not be reluctant to rule on the admissibility of DNA evidence. Results of science when competently obtained, should be applied by the courts, in aid of situations presented before them. To reject such results would be to deny progress and also justice to the concerned. By keeping a balance between the system based on scientific technology and our existing value based system, we can effectively utilize the benefit of such scientific advancements by suitably modifying our administration of justice system, by remaining within the gamut of the existing legal framework.