DNA Technology and Its Application in the Administration of Justice”
By Ajit Namdev and Jitendra Parmar
National Law Institute Universty, Bhopal
As an impact of the modern scientific and technological revolution on different aspects of our social and cultural activities, we may often find a shift from our age-old traditional ideas based on subjectivism in our major intellectual exercises. This type of shift has put a serious challenge to our conventional adversarial value-based system of justice. Today, the most pertinent question which generates much debate among the jurists, judges, scientists, lawyers and academicians irrespective of every legal system, is how far the present value-based system of justice requires to be changed, or modified or reoriented for the purpose of utilising the benefit of modern scientific discoveries and technological advancement in justice-delivery system. Whether such reorientation minimises the probability factors and subjectivism in judicial process. In the present article, I am trying to deal with hereinafter the aforesaid question from the point of view of the prospect and problem of the application of DNA technology in administration of justice.
There is no doubt that this new technology can be used as an effective tool in crime detection to accelerate crime control for a better society. But at the same time we cannot overlook the fact that it cannot be implemented in any legal system without hampering some basic human rights of an accused like right against self-incrimination, right of privacy etc.
Therefore, the problem, that the lawmakers and the judges would face in introducing this technology, is how to make a susceptible balance between the above two conflicting interests of the society.
Importance and relevance of forensic science and DNA technology in legal system
Forensic science, as a scientific discipline, functioning within the parameters of the legal system not only provides guidance in criminal and civil investigation but also supplies the courts accurate information about all the attending features of identification of criminals. Actually, the recent advancement in modern biological research has revolutionised forensic science resulting in a radical impact on the administration of justice. In the new scientific era, the emergence of DNA testing changes the role of forensic science in the legal system from passive spectator to the main key player.
As such, the chemical structure of the DNA in the cells of each individual is the sole determining factor to identify one separately from another except the “genetically identical twins”. The discovery of modern genetic science can be used in identification of criminals in criminal cases by analysing various objects recovered on the crime spot like any body fluid, hair root, saliva, fibres etc. which are associated with the crime and accurately linked to the perpetrator of the crime. Actually, this technology is utilised as a new form of circumstantial evidence, which is placed on a higher footing than the direct and ocular evidence because of its objectivity, scientific accuracy, infallibility and impartial character.
Moreover, this new technology is also extensively applied in civil cases in order to determine paternity or maternity disputes, baby-exchanging cases, succession cases, maintenance proceedings and matrimonial disputes etc. For instance, in case of disputed paternity of a child, mere comparison of DNA obtained from the body fluid or body tissues of the child with his father and mother can offer infallible evidence of biological parentage within a short time. No other evidence of corroboration is required because timely medical examination and proper sampling of body fluids followed by quality forensic examination can offer irrefutable evidence, circumventing the need of prolonged argument in courts of law.
Acceptability of scientific DNA evidence in courtrooms of the United States
DNA technology, as discussed here in above, has created a visible profound impact not only in the field of genetic science but also in the field of law and justice in the United States. In the year 1985, Dr Alec Jeffreys of the University of Leicester, England, for the first time, used this technology to assist the investigating agency in identifying a suspect in a case of rape and homicide. This incident paved the way for the development and application of DNA technology in the United States. But initially before the pronouncement of Daubert case (1993)1 the US Supreme Court strictly adhered to a very conservative view formulated in Frye case (1929)2 regarding acceptability of scientific evidence. As this technology, in its initial stage, was used only in few laboratories, US courts did not accept it as admissible evidence under the said Frye rule. It directed the courts to determine whether the scientific evidence in question has “gained general acceptance in the particular field in which it belongs”. Thus, the Frye standard was considered to be a roadblock in admissibility of DNA evidence in USA simply because the techniques were recently developed.
However, in Daubert case (1993)1, the US Supreme Court upheld that the said “general acceptance” test of Frye case2 should not be a necessary precondition for admissibility of scientific evidence under Rule 702 of the Federal Rules of Evidence which assigned the trial Judge the task of ensuring that an expert’s testimony rests on a reliable foundation. In order to determine whether scientific evidence is admissible the court may consider (i) whether the principle or technique has been or can be reliably tested, (ii) whether it has been subjected to peer review or publication, (iii) its known or potential rate of error, (iv) whether there are recognised standards that control the procedure of the implementation of the technique, (v) whether it is generally accepted by the community, and (vi) whether the technique was introduced or conducted independently of the litigation. Daubert case1 still allows consideration of “generally accepted” standard. But at the same time, it recognised in practice, a “gatekeeping role” of a judge whose main duty is not to make exhaustive search for cosmic understanding of scientific evidence, but to resolve the legal disputes with the help of the said technology.
After the pronouncement of Daubert case1, DNA technology is extensively used in US legal system not only for the purpose of proving the innocence of undertrial prisoners in pending cases but also for exonerating those prisoners who were earlier convicted by the conventional system of justice. The US National Institute of Justice under the guidance of former Attorney General Jonet Reno, issued a report in 1996, namely, “Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial”.3 The said report revealed 28 DNA exculpatory cases and thereby the increase in the importance of the use of DNA testing in exonerating innocents even after their conviction.
Admissibility of DNA evidence in paternity dispute cases in India
In our country, initially the judges took very conservative views regarding the application of DNA evidence in resolving the paternity/maternity dispute cases. Indian judges often face a debatable question in deciding matters of paternal responsibility of whether the law should give priority to biological parentage over social parentage or not.
To determine the child’s parentage there is a statutory presumption under Section 112 of the Evidence Act that any person born during the continuance of a valid marriage between his/her 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 had no access to each other at any time when that child could have been begotten.
Now, DNA testing may be used to rebut the said statutory presumption arising under the Act, or to establish evidence in the circumstances where no presumption arises. One may seek DNA parentage testing in order to obtain evidence of non-paternity for the purpose of civil proceedings against the child’s mother to prove “paternity fraud” and claim damages for emotional stress and financial loss that was suffered due to such fraud. DNA parentage testing may provide evidence to show that a person has a biological connection with a deceased person and can be a proof in support of a succession claim.
In Goutam Kundu v. State of W.B.5, the Supreme Court expressed the most reluctant attitude in the application of DNA evidence in resolving the paternity dispute arising out of a maintenance proceeding. In the said case, the father disputed paternity and demanded blood grouping test to determine parentage for the purpose of deciding whether a child is entitled to get maintenance under Section 125 of the Code of Criminal Procedure from him. In this context, the Supreme Court held that where purpose of the application was nothing more than to avoid payment of maintenance, without making out any ground whatever to have recourse to the test, the application for blood test couldn’t be accepted. It was also held that no person could be compelled to give sample of blood for analysis against his/her will and no adverse inference can be drawn against him/her for such refusal.
In a recent judgment of the Supreme Court in the year 2001, Kamti Devi v. Poshi Ram6, the Court gave priority to social parentage over biological parentage and thereby rejected DNA evidence by observing that though the result of a genuine DNA test is said to be scientifically accurate it is not enough to escape from the conclusiveness of Section 112 of the Evidence Act, 1872.
In Sharda v. Dharmpal7 the Supreme Court took a very positive view regarding importance as well as admissibility of DNA evidence in matrimonial cases. The Supreme Court categorically observed that: (SCC p. 524, para 81)
“1. A matrimonial court has the power to order a person to undergo medical test.
2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.
3. 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. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”
In the aforesaid case, the Supreme Court by distinguishing its earlier decision in Goutam Kundu case5 further held that right to privacy under Article 21 of the Constitution is not an absolute right and in a case of conflict between the fundamental rights of the two parties, the court has to strike balance between the competing rights.
Suggestions for legal reforms in effective application of DNA technology in our country
The Constitution of India, by Article 51-A(h) and (j), declares 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 higher levels of endeavour and achievement”. In the light of the said constitutional provision we need the following amendments in substantive as well as procedural laws of our country:
1. Section 53 of the Criminal Procedure Code provides some scope to the investigating officer to have the accused examined by a medical practitioner at the request of the police. This section does not specifically say whether it would be applicable for DNA test.
2. It relates to examination of the accused by a medical practitioner. This section never contemplates that the police officer shall be entitled to collect semen, blood, saliva, hair root, urine, vaginal swab etc. for the purpose of investigation personally by himself. For the purpose of crime investigation, Section 53 CrPC should be more specific, clearer, more unambiguous, more meaningful, and more purposeful so that an investigating officer may not face any difficulty for the purpose of crime investigation.
3. Under Section 293 CrPC the reports of certain government scientific experts can be used as evidence in any enquiry, trial or other proceedings under the Criminal Procedure Code and he need not be examined as a witness. But the entry for DNA fingerprinting and diagnostics is not specific in Section 293(4) CrPC. Therefore, the expert has to give evidence in each case where a report has been given.
4. In view of the fact that DNA typing is an exact science, there is a necessity to amend the provisions of the Criminal Procedure Code, to include the scientists of this institute in Section 293(4) CrPC and to treat their reports as evidence.
5. Otherwise it is difficult for these experts to go around the country for giving evidence at every trial, in cases where they are to give expert opinion.
Article 20(3) of the Constitution of India has to be reinterpreted to the effect that the accused should not get protection of this article when the investigating officer or the court direct him to give DNA sample for the purpose of investigation and if he does not give consent then an adverse inference should not be drawn against him.
A specific unambiguous scientific DNA legislation is the paramount need of this age for effective application of this new gift of forensic science in our legal system. The purpose of the proposed legislation is threefold. Firstly, it would provide the investigating agency a specific guideline for collection and preservation of DNA samples from the crime spot. Secondly, it would provide specific objective guideline to the trial Judge to evaluate the DNA evidence properly. Thirdly, this scientific legislation gives a fixed standard of procedure for extracting and evaluating the DNA from the samples collected by the investigating agency.
6. The privacy principles with a statutory backing would bring about transparency and accountability and would reassure the community that what is sacrificed for greater safety and security is done so legitimately. Though in Sharda v. Dharmpal7 the Supreme Court declared that the right of privacy guaranteed under Article 21 of the Constitution couldn’t operate as a bar when the question of public morality and public interest will arise, but a comprehensive legislation regarding privacy law is required in our country in the line of the Australian Privacy Act, 1988, as amended by the Privacy Amendment (Private Sector) Act, 2001.
7. Again, the law should recognise a child’s right to give or withhold consent to the testing of his or her own genetic sample where the child has acquired sufficient maturity and understanding of the process and its implications to safeguard his or her own interest. Legislation should provide for enabling a child above 12 years of age and having sufficient maturity to make a free and informed decision whether to submit a genetic sample for parentage testing. Paramount consideration should, however, in all events be the welfare of the child concerned.
Limitations of DNA technology
In spite of the fact that the application of DNA technology in the criminal justice system is a social necessity, this new technology is not above criticism. Questions remain concerning whether DNA evidence is a threat to the right to a fair trial or the right against incrimination as guaranteed by both the Indian and American Constitutions. There are also concerns about the statistical probabilities. Critics argued that no matter how small the chance might be that two persons will have the same profile, can we convict a person on the basis of probability? Moreover, O.J. Simpson case8was the exception because his Defense Attorney was able to attack the DNA evidence presented by the prosecution. The most glaring example in favour of the aforesaid argument is the recent incident in the State of Kashmir in March 2000 where five persons killed and burnt in a remote South Kashmir hamlet and dubbed militants with responsibility for massacre of 35 Sikhs at Chittisinghpora, were innocent local civilians. In this case, the Central Forensic Science Laboratory’s report on the DNA at Chittisinghpora nailed the Jammu and Kashmir Government and proved that the State machinery had tampered with DNA samples.
Another Indian example is Priyadarshini Matto murder case where the accused Santosh Kumar Singh, the son of Pondicherry Inspector General of Police, J.P. Singh was acquitted because DNA samples were fudged by the deliberate inaction of Delhi Police.
Thus, three questions are still remaining unanswered regarding the credibility of DNA evidence — could more than one person have the same DNA structure? Would investigators take care in gathering the evidence? Could they fake the evidence? Despite the above criticism, it cannot be denied that DNA fingerprinting is the most effective tool in the search for justice. It provides the prosecution with a way to finger suspects with a high degree of certainty and can exonerate others without the expense and suffering caused by trial. In answering the above criticism, Daniel Koshland, the Editor of Science Magazine of USA observed: “Caution is appropriate, unreasonable doubt is not.”
Keeping in mind the aforesaid criticism it is highly unsafe to convict or acquit a person solely on the basis of DNA evidence. There must be a unique balance between scientific evidence and human evidence. Therefore, existing value-based criminal justice system cannot be done away with and as such, a susceptible balance has to be struck between the modern system based on scientific and technological knowledge and our existing value-based system.
It should be remembered that the law directly deals with basic complex human problems, which are not of mathematical precision, and the fate of every case depends upon its own factual matrix. Thus, scientific evidences like DNA testing are one of the means to achieve the main goal i.e. the “truth” and it is not an end in itself. However, we have to modify our administration of justice system remaining in the existing framework to the effect that we can effectively utilise the benefit of modern scientific and technological advancement.
1. Daubart v. Merrell Dow Pharmaceuticalst Inc., 113 S Ct 2786 (1993)
2. Frye v. United States, 293 F 1013 (DC Cir 1923)
3. “Convicted by Juries and Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial” (US Department of Justice, reported in 1996).
4. Presley, Lawrence A.: “The Evolution of Quality Standards for Forensic DNA Analyses in the United States5. (1993) 3 SCC 418
6. (2001) 5 SCC 311 : 2001 SCC (Cri) 892
7. (2003) 4 SCC 493
8. People v. Orienthal James Simpson