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Admissibility of DNA Technology in the Indian Legal System

What is DNA TEST?

DNA test or ‘DNA Profiling’ as popularly known is a technique in which a sample of DNA is run through a laboratory assay to generate information about it, looking specifically for DNA which could identify the source of the sample, or be used as a base of comparison between two samples. This technique is used at various places for different purposes ranging from law enforcement to Medical Treatment. The technology of DNA Test was first reported in the year 1984 by Sir Alec Jeffrey at the University of Leicester in England. Soon after this incident, it became one of the most important technologies to be used in the Forensic Science. In the publications in 1985 by Jeffery and his colleagues, the term ‘DNA Fingerprint’ carried the connotation of absolute identification. Forensic DNA typing which was first used in the year 1985 in casework in United Kingdom was initiated in the United States in the late 1986 by the Commercial Laboratories and in 1988 by The Federal Bureau of Investigation, which is now used in a number of cases relating to crime, divorce, adultery etc. In forensic application, minutiae in the fingerprint patterns, not ridge counts, are used for personal identification.

The test for the admissibility of scientific technique enunciated in Fyre v. United States has been the most frequently invoked one in American case law. But in practice, the court is much more involved in applying the law which was enunciated in Fyre case, there are various factors which are being determined by the court which includes the identification of the authenticity of the evidence. Its applicability has been varied from case to case in the United States, but the principle evolved in the Fyre’s case soon became quite helpful in solving many cases relating to various issues with the help of DNA Technology.

DNA Test and the Indian Legal System

The application of DNA testing has been used in India for a long period of time. Sometimes, it has been used to resolve certain question which sometimes becomes very difficult to resolve such as “Has the crime been committed?”, “How and when was the crime committed?”, “Who committed the crime?”. You must be aware of the incidents of the movies when an inspector finds something at the crime spot i.e. blood, hair etc. Now what is the use of these material evidences in the investigation? The answer is very simple, that these material evidences help them in determining as to who was actually present at the place where the incident happened. DNA technology has also been used in the civil cases, to determine the biological relationship between a two or sometimes three individual. Usually, it has been used to determine the paternity of a person, where a person denies being the biological parent of a person. DNA parentage testing may help a person in absolving him from the charge of being the biological parent of a person, but it cannot be trusted to prove absolutely that a person is the child’s biological parent; however it can provide a probability.

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 which is present in Indian 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. Moreover, there is no such specific provision under Indian Evidence Act, 1872 and Code of Criminal Procedure 1973 to manage science and technology issues. Due to lack of having any such provision, an investigation officer has to face much trouble in collecting evidences which involves modern mechanism to prove the accused person guilty.

Section 53 of Code of Criminal Procedure 1973 authorizes a police officer to get the assistance of a medical practitioner in good faith for the purpose of the investigation. But, it doesn’t enable a complainant to collect blood, semen etc for bringing the criminal charges against the accused. The amendment of CrPC by the CrPC (Amendment) Act, 2005 has brought two new sections which authorizes the investigating officer to collect DNA sample from the body of the accused and the victim with the help of medical practitioner. These sections 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 in a state of doubt 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 for the public policy. There is an urgent need to re-examine these sections and laws as there is no rule present in the Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973 to manage science and technology issues.

Many developed countries have been forced to change their legislations after the introduction of the DNA testing in the legal system. There are certain provisions which are present in the Indian Evidence Act, 1872 such as section 112 which determine child’s parentage and states that a child born in a valid marriage between a mother and a man within 280 days of the dissolution of the marriage, and the mother remaining unmarried shows that the child belongs to the man, unless proved otherwise but again no specific provision which would cover modern scientific techniques. DNA analysis is of utmost importance in determining the paternity of a child in the cases of civil disputes. Need of this evidence is most significant in the criminal cases, civil cases, and in the maintenance proceeding in the criminal courts under section 125 of thr CrPC.

The introduction of the DNA Technology has posed serious challenge to some legal and fundamental rights of an individual such as ‘Right to Privacy’, ‘Right against self-incrimination’. And this is the most important reason why courts sometimes are reluctant in accepting the evidences based on DNA Technology. Right to Privacy has been included under Right to Life and Personal Liberty or Article 21 of the Indian Constitution, and Article 20(3) provides Right against Self-Incrimination which protects an accused person in criminal cases from providing evidence against himself or evidences which can make him guilty. But it has been held by the Supreme Court on several occasions that Right to Life and Personal Liberty is not an absolute Right. In Govid Singh v. State of Madhya Pradhes, Supreme Court held that a fundamental right must be subject to restriction on the basis of compelling public interest. In another case Kharak Singh v. State of Uttar Pradesh, Supreme held that Right to Privacy is not a guaranteed right under our Constitution. It is clear from various decisions which have been delivered by the Supreme Court from time to time that the Right to Life and Personal Liberty which has been guaranteed under our Indian Constitution is not an absolute one and it can be subject to some restrictions. And it is on this basis that the constitutionality of the laws affecting Right to Life and Personal Liberty are upheld by the Supreme Court which includes medical examination. And it is on this basis that various courts in the Country have allowed DNA technology to be used in the investigation and in producing evidence. To make sure that modern technologies can be used effectively, there is an urgent need of a specific legislation which would provide the guidelines regulating DNA Testing in India.

The use of DNA Technology is very frequent in the cases related to paternity issues. It was the Delhi High Court which set the precedent in 2008 for determining paternity in the case of child maintenance suit. In this case a man filed a suit claiming that he was not the father of the child for whom his wife was maintenance (Ravindra v. Sonam – Names have been kept anonymous by the court due to privacy reasons). The suit was dismissed by the Trial Court, but it was allowed by the High Court and held that The parentage of the child can only be determined by a DNA test. The liability to pay maintenance under section 125 CrPC can be avoided by the petitioner with respect to this child only if it is established that he is not the biological son of the petitioner”The decision was on the one hand was criticized by one group of the society stating that it would harm the child in the question psychologically, while on the other hand it has been supported by other group of the society stating that DNA Testing should be allowed in the cases involving child maintenance. Admissibility of DNA technology in civil or criminal suit would remain in question and these evidences should be examined by the courts very carefully.

The recent refusal of the Supreme Court to dismiss the Delhi High Court’s decision ordering Veteran Congress Leader N.D. Tiwari to undergo the DNA test is very important from the viewpoint of the admissibility of such evidence. In this case, Rohit Shekar has claimed to be the biological son of N.D. Tiwari, but N.D. Tiwari is reluctant to undergo such test stating that it would be the violation of his Right to Privacy and it would cause him public humiliation. But Supreme Court rejected this point stating when the result of the test would not be revealed to anyone and it would under a sealed envelope, there is no point of getting humiliated. Supreme Court further stated that we want young man to get justice; he should not left without any remedy. It would be very interesting to see that how courts in India would allow the admissibility of DNA technology in the future.


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