By Abhijeet Sharma
Recently the Indian Evidence (Amendment) Bill, 2003 has been proposed with the recommendation of the 185th Law Commission Report. The Bill provides for DNA statutes. DNA fingerprinting is a forensic evidence which can help identify individuals positively. DNA is the latest form of evidence for establishing identity with virtually 100 percent certainty.
DNA fingerprinting is based on the principle that the genetic makeup of every individual is different from the others and is unique to an individual. DNA fingerprinting is the only definite, positive and unchangeable identification technique because an individual’s DNA remains the same during one’s lifetime.
DNA technology furthers the search for truth by helping police and prosecutors in the fight against violent crime and also enabling prosecutors to conclusively determine the guilt of the defendant.
However, the use of DNA samples is not yet adequately covered by the Evidence Act. It is therefore left to the discretion of the judges whether the DNA tests under Section 45 of the Indian Evidence Act are to be accepted or not.
The major concerns include the protection of every citizen from providing self-incriminating evidence, the fact that Section 112 of the Evidence Act has not been appropriately amended in light of scientific developments, the absence of legislation on DNA fingerprinting, the absence of a provision in the Evidence Act empowering courts to order DNA fingerprinting, and the absence of guidelines for analyzing DNA fingerprints for courts to accept this as evidence.
There is an urgent need for suitable amendments in the Evidence Act and the enactment of legislation for DNA fingerprinting.
The Frye Test
In Frye v. United States (1923), it was held that scientific evidence would be admissible only after the thing from which the deduction is made had been sufficiently established to have gained general acceptance in the particular field in which it belongs. This decision was the birth of what ultimately became known alternatively as the Frye test or the general acceptance test.
The Frye test would, by the end of the 1990s, become the majority test for the admissibility of novel scientific evidence.
People v. Castro
The first case that seriously challenged a DNA profile’s admissibility was People v. Castro (1989). The New York Supreme Court, in a 12-week pretrial hearing, exhaustively examined numerous issues relating to the admissibility of DNA evidence. Jose Castro was accused of murdering his neighbor and her 2-year-old daughter. A bloodstain on Castro’s watch was analyzed for a match to the victim.
The court held the following:
- DNA identification theory and practice are generally accepted among the scientific community.
- DNA forensic identification techniques are generally accepted by the scientific community.
- Pretrial hearings are required to determine whether the testing laboratory’s methodology was substantially in accord with scientific standards and produced reliable results for jury consideration.
DNA Evidence in India
However, in Indian context, the awareness and the prospective of this technique is still lacking, the major reason for which is that this technique is still not a part of the Evidence Act. It is left to the discretion of the judges whether the DNA tests under Section 45 of the Indian Evidence Act are to be accepted or not.
The first paternity dispute in India (2000), which was solved by DNA fingerprinting test, was case No. M.C. 17 of 1988 in the court of the Chief Judicial Magistrate of Tellicherry (Thalassery). The Chief Judicial Magistrate held that the evidence of an expert is admissible under Section 45 of the Indian Evidence Act, 1872, and that the grounds on which the opinion is arrived at are also relevant under Section 51.
This verdict was challenged in the High Court but the High Court upheld the verdict of the Tellicherry Court stating that the results of DNA test by itself could be decisive in paternity.
Right to Refuse DNA Testing
Many times objections have been raised against the orders or applications filed for conducting DNA tests on the ground that no one can be forced to give his/her blood sample.
In Goutam Kundu v. State of West Bengal & Anr. (1993), it was held that “wife cannot be forced to give blood sample and no adverse inference against her for this refusal”.
In a recent case of Mrs. Kanchan Bedi and Anr. v. Shri Gurpreet Singh Bedi (2003), where the parentage of the infant was in question, and the application filed by the mother for conducting DNA test was vehemently opposed by the father contending that it would violate his rights, Justice Vikramjit Sen held that the law, as it presently stands, does not contemplate any impediment or violation of rights in directing persons to submit themselves for DNA test, especially where the parentage of a child is in controversy for the grant of maintenance.
It was further held that where the parentage of a child is in controversy for the grant of maintenance, parties submitting themselves for the DNA test was not violation of rights. He distinguished this case from Gautam Kundu’s case.
Sharda v. Dharmpal
In a very important judgment delivered in the Supreme Court of India in the case of Sharda v. Dharmpal (2003), the core question was whether a party to a divorce proceeding can be compelled to a medical examination.
In this case an order for DNA test was opposed by the Respondent on the ground that such an order violates his right to privacy. The three-Judge bench of the Supreme Court held that if, for arriving at a satisfactory conclusion, the court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. The court, having regard to Article 21, must also see to it that the right of a person to defend himself must be adequately protected.
It was also said that if despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out. Section 114 of the Indian Evidence Act enables a Court to draw an adverse inference if the party does not produce the relevant evidence in his power and possession.
What Should Be Done?
Applications of DNA testing are now well established in developed countries. Canada has passed DNA Identification Act which became official on June 30, 2000. Recently, Advancing Justice through DNA Technology Act of 2003 has been enacted in the United States of America. Britain has Criminal Justice and Public Order Act, which provides for forcible testing of blood samples.
Judges feel helpless in giving any order for conducting DNA tests in the absence of any legislation on DNA fingerprinting and also because of non-existence of any provision in the Evidence Act empowering the courts for this.
Legislature should draft a worthy piece of legislation that primarily would maximize the use of DNA evidence to punish the guilty and protect the innocent, as has been done in Canada, USA and UK.
The Indian Evidence (Amendment) Bill, 2003 has been proposed and according to this proposed amendment in Section 112, the section regarding paternity disputes, the Bill provides for DNA tests conducted in cases of paternity disputes with the consent of the man and in the case of the child by permission of the court.
It also provides that in case the man refuses to undergo the DNA test, then he shall be deemed to have waived his defence to any claim of paternity made against him.
According to this proposed amendment, DNA tests can result in proving definitely that a person is not the father, where the samples do not match. But where the samples match, the controversy remains. I think that as ‘match’ and ‘mismatch’ both have the same probability, so both of them must be given the same weight and both must have the same effect.
In our country no one can be forced to give his blood sample for testing. Now, if a person has committed an offence, then why will he volunteer to give a specimen of blood, knowing fully well that it will convict them? Such a law which prohibits taking blood samples forcibly without the wishes of an individual for medical examination is rather protecting the offenders, which from no angle of vision can be the purpose of law.
Even in well developed countries like Canada and Britain forceful blood examination is permitted to serve the ends of justice. It also cannot be said that proof coming out from DNA cannot be self-incriminatory because it is naturally present in the body, thus any proof derived from it cannot be self-incriminatory.
Proposed Legislative Safeguards
There is a need for the enactment of a legislation providing for DNA examination and establishment of a National Commission, which will keep abreast of all new technological developments for scientists and lawyers alike. The Commission will formulate the procedure, standards and quality control, and will provide official approval to the testing laboratories.
The legislation must provide that:
- DNA evidence should not be collected from a suspect unless the information is relevant to a specific crime in question and it must not be collected from suspects as a matter of routine.
- There should be reasonable grounds for suspecting that the person committed the offence before taking the DNA sample.
- As a privacy safeguard, DNA evidence should be collected from a suspect only if a judge authorizes the collection.
- The legislation should also provide for the eligibility of the scientists conducting the DNA tests.
- The legislation should also authorize collection of DNA samples from persons convicted of specified felony offenses, military offenders, and terrorism-related offences. Because of their DNA record it would be much easier to trace the criminal and also it would save a lot of time of police.
- The legislation should also provide that police officers must be properly trained for collecting samples for DNA test from the crime scene.
- The legislation should also permit storage and maintenance of DNA data of crime scene specimens, unidentified human remains and relatives of missing persons.
- Guidelines must be laid for analyzing DNA fingerprints for courts to accept this as evidence.