Introduction:
DNA fingerprinting or also called as DNA typing or DNA profiling is not a new term for the Indian legal system. Its use as evidence in both criminal and civil case has grown in recent times. It was first discovered by the scientists Francis H. C. Crick and James D. Watson in 1953 and since then it has come a long way. DNA is a double helix structure and it appears like a twisted ladder. From this Dr A. J. Jeffreys invented the technique known as fingerprinting. It was first used in the rape and murder case of teenage girl Dawn Ashworth near Leicester in which the real criminal Colin Pitchfork was convicted guilty and exonerated the innocent suspect Richard Buckland.
There are mainly 2 types of DNA testing which are Restriction Fragment Length Polymorphism, (RFLP) and Polymerase Chain Reaction (PCR) testing.[1] On average a human body contains 250 grams of DNA and the desired quantity for DNA Testing is only in micrograms. DNA blueprints are unique for every individual and the only exception to this are identical twins. Genes are present in all cells of the body so it is easy to take from the sample of blood, saliva, hair root, semen, cigarette butts and razor clippings for testing. The western countries have adopted DNA profiling in their legal system and frequently use DNA profiling for solving criminal cases. Compared to other countries, India is lagging behind in this aspect as there is still no specific provision for DNA testing in India.[2]
Definition
- DNA- deoxyribonucleic acid: It is the main component in Chromosomes and it is extremely long and is responsible for transferring genetic characteristics in all life forms, constructed of two nucleotide strands coiled around each other in a ladderlike arrangement with the sidepieces composed of alternating phosphate and deoxyribose units and the rungs composed of the purine and pyrimidine bases adenine, guanine, cytosine, and thymine.
- DNA fingerprinting is a technique in which series of the test from a sample DNA is run through the laboratory to find the source DNA or compare 2 samples which are used for various purposes from law enforcement such as identification, verification, paternity issue to medical treatment.[3]
DNA Testing and Indian Legal System
DNA evidence proves to be of great significance in criminal cases to exonerate the innocent or prove the convict guilty. Right now, the status of DNA fingerprinting is uncertain in India right now as of yet. The admissibility of DNA testing as evidence in the court always depends upon accurate and proper collection, it’s preservation and documentation which proves that the evidence put forward is reliable and satisfactory to the court.
There is no specific provision for DNA testing in Evidence Act, 1872 and Code of Criminal Procedure, 1973 for regulating, ordering or managing the DNA collection. Therefore there is a heavy burden on the officer for collecting evidence through a modern mechanism to prove an accused person guilty.
DNA in Criminal Cases
In special cases such as rape, we have Section 53 of Code of Criminal Procedure, 1973 which authorizes police office to get the help of a medical practitioner in examining a person accused of rape, which may include the collection of bodily substances from the accused of DNA fingerprinting, in good faith for the purpose of the investigation.[4] But, it doesn‘t enable a complainant to collect blood, semen etc. for bringing the criminal charges against the accused.
Through the amendment of Cr. P. C. by the Cr. P. C. (Amendment) Act, 2005 there are 2 new sections which authorize the police officer to collect DNA with the help of a medical practitioner from the body of the accused and the victim respectively, but due to legal and constitutional prohibition or sometimes public policy judges do not admit it as evidence in the court. [5]
This issue was also discussed in the case of Rudresh @ Rudrachari v State of Karnataka[6] where the person accused of rape was being examined on the request of the investigating officer not below the rank of Sub-Inspector with the help of a medical practitioner. Here the question was whether the court can issue an order for conducting DNA test under Section 53 A of Cr.P.C. or is it strictly on the request of the investigating officer. The court observed in this case that is not necessary that medical testing has to be done strictly on the request of a police officer, The primary duty of the court is to ascertain the truth. Thus it is not correct to say that court or magistrate cannot direct or order the accused of medical examination as contemplated under Section 53 and 54 of the Code.
It was also observed in the case of Halappa v. State of Karnataka[7] that Drawing of blood without consent in criminal cases such as rape where investigation agency has to establish the case beyond reasonable doubt cannot be said as violative of Article 20(3) of the Constitution.
DNA in Civil Cases
DNA test in the civil case is to generally decide paternity issues in divorce, maintenance, inheritance and succession etc.
Section 112 of Evidence Act, 1872 determines the child parentage and states that child born from a valid marriage between a mother and a man with 280 days of dissolutions of marriage shows that the child belongs to that man unless proved otherwise. [8]
In the case of Gautam Kundu vs. Bengal[9], division bench of Apex court observed that:
- Courts cannot order for a blood test as a matter of course.
- There must be a strong case of prima facie in the favour of husband to establish the non-access in order to dispel presumption arising in section112 of evidence act.
- No one can be compelled to give blood samples.
Subsequently in a full bench of the Supreme Court in Sharda v Dharmpal[10], the court observed on the other hand that Gautam Kundu vs. Bengal is of no authority for the proposition that in no circumstance blood test cannot be ordered by a court. It said:
- A matrimonial court has the power to order for a blood test of a person.
- Passing such order is not in violation of Article 21 of the Indian Constitution.
- The court should exercise the power if there is a strong prima facie case and sufficient material before the court.
In the famous case of Shri Rohit Shekhar v. Shri Narayan Dutt Tiwari and Anr [11] where Rohit filed a paternity suit against 3 times Chief Minister of the state of Uttar Pradesh, Shri Narayan Dutt Tiwari. He was ordered by the Hon’ble High court to go through DNA testing which subsequently confirmed his fatherhood.
The Law Commission in its 185th report recommends amending section 112 of Evidence act, 1872. In most of the paternity cases, the petitioner faces financial issues and is not capable of spending money to go through the required DNA testing in order to prove their claim. The Kerala Woman Commission assists such persons as it gets DNA test conducted at Rajiv Gandhi Centre of Biotechnology, Thiruvanthupur at the cost of Commission.[12]
Right to Privacy
The introduction of a DNA database with the help of DNA profiling has posed a problem to the legal and fundamental rights of an individual such as Right to privacy and Right against self-incrimination. Since DNA is able to reveal more than identity alone it poses a serious issue of privacy. Right to privacy is covered under Right to life and personal liberty or article 21 of the Indian Constitution, but it has been held multiple times by Supreme Court that Right to Life and Personal Liberty is not an absolute Right.
In the case M.P. Sharma v. Satish Chandra[13] on search and seizure, the Supreme Court observed that:
“When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”
Subsequently, in the case of Kharak Singh vs State of Uttar Pradesh[14], the Supreme Court observed that right to privacy is not a guaranteed right in the Indian Constitution and therefore to ascertain the movement of individuals which is merely a manner in which privacy is invaded is not an infringement of fundamental rights.
In the case of Govind Singh versus State of Madhya Pradesh[15], the court held that fundamental rights must be subject to restrictions on the basis of compelling public interest. The right to privacy has to go through a process of case to case development.
Right Against Self Incrimination
DNA fingerprinting is incomplete without discussing right against self-incrimination which is covered under article 20(3) of the constitution of India. Various judgements have been made on the violation of the right against self-incrimination which has created a lot of uncertainty about the legal stance of DNA fingerprinting. One of the major judgement which has touched upon this topic is State of Bombay v. Kathi Kalu Oghad &ors[16]. In this case, an eleven judge bench of the court held that:
If an accused is called upon the court by an investigating agency or any other authority to give fingerprint(s), writing sample or signature, then his testimony is not taken as a ‘personal testimony’ as it must depend upon his own violation. He may give any statement or deny to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character.
Thus, giving of fingerprint, writing sample or signature is not included within the expression ‘to be a witness’. The court said that collection any evidence of ‘private nature’ does not attract the maxim Nemo debet proderese ipsum which means that no one can be required to be his own betrayer. Being a witness has been interpreted to mean imparting some sort of knowledge in testimony
Factors Affecting DNA Fingerprinting[17]
There are many variable factors which affect the DNA samples such as temperature, humidity, UV irradiation and soil ph. These factors are mentioned in detail below
- Temperature
It is one of the most important factors affecting DNA samples. It was observed by Hoss and Jaruga et al that DNA samples collected from arctic and subarctic regions have very little damage as compared to the DNA samples collected from warm regions. Tissue samples (soft and bone tissues) from mammoth and Selerikan horse collected from Siberia have very little damage done to DNA samples and so allowed PCR amplification, however, DNA samples collected from a warm region like Egypt and South Africa show a large amount of damage to the DNA sample for which PCR amplification is not possible. Studies suggest that preserving DNA in a cold and drier region increases the possibility of retrieving DNA as reducing the temperature by 20 degrees Celsius decreases degradation by 10-25 folds and high temperature accelerates the degradation of DNA.
- Humidity
Degradation of DNA increases due to a higher level of humidity in the environment. There is a high rate of degradation observed in the DNA samples taken from rape cases. On average samples from 50% of the cases submitted to the laboratories are not suitable for DNA analysis. It was observed that in 40% of the cases rapid degradation occurred in the samples taken from vaginal swabs in 48 hours after sexual intercourse due to the warm and moist conditions of the vagina. Drying of the sample prevents DNA degradation as the absence of water prevents microbial growth, enzymatic degradation and other forms of chemical changes.
- Influence of deposition of environment and tissue type on degradation
All post-mortem issue go through degradation over time. However different type of tissue has a different influence on degradation, for example, hair, muscle and bone. Due to putrification and autolysis degradation of muscles happens at a faster rate as they are directly exposed to the surrounding environment. Hair contains keratin which has a strong disulfide-bonded molecular structure which is resistant to surrounding environmental influence and cells of bone tissue present in an extracellular matrix mineralised due to deposition of calcium which gives bones enough strength to preserve the cells and withstand the influence of surrounding environment.
- Sunlight or Ultraviolet (UV) irradiation
According to studies by Hummel and Herrmann UV rays induces covalent binding of opposite thymine basis resulting in double-stranded DNA from annealing which prevents PCR amplification. In another study by Paabo and Irwin et al during PCR amplification due to UV radiation damage done to DNA template, primer extension jumps to another template creating in vitro recombination products. This creates an issue when there are two or more different target sequence present. Different studies have shown mutagenic and lethal effects on living tissues but the effect of UV radiation post mortem tissues is not understood clearly.
- Soil pH
Soil pH also influences the tissue sample by causing DNA degradation. Low pH value or acidic environment increases the damage done to the bone or teeth. Neutral or slightly alkaline pH in the soil meets the requirement needed for preserving the DNA. In a study by Zink and Nerlich, it was found that elevated pH in the environment because of naturally occurring salt mixture called “natron” is the reason for longer preservation of the bodies of ancient mummies.
Other Problems in DNA Fingerprinting[18]
- Lack of test centers
People in other countries can get DNA analysis anywhere as there are enough facilities for DNA testing, but in India facilities for DNA testing can be counted on one hand. For DNA testing people have to go all the way to Hyderabad at Cellular and Molecular Biology or CCMB which is not possible for anyone. There should enough testing centres for in the country or it should be made possible that everyone can easily go through DNA testing.
- Handling of samples
For the DNA fingerprinting to be admissible as evidence, it has to be an accurate and proper collection, preservation and documentation to satisfy the court. As we have seen in the Arushi Talwar case what how the handling of DNA samples can negate the admissibility of the evidence. There is no proper training for investigating officers in India on how to handle or collect the DNA samples which results in the destruction of vital DNA evidence.[19]
Conclusion
DNA fingerprinting has brought a revolution to the Indian legal system. Testing technologies have improved and ensured more efficient DNA evidence processing, courts expectation of DNA testing increases. There is a greater emphasis on the initial collection of DNA samples at the crime scenes. Initial evidence is the key link to successful testing and also the most vulnerable link. Uniform and national level law should be made on DNA testing and its admissibility in the court so that there is no uncertainty present. Proper training should also be provided to investigating agencies for collection and preservation of DNA to overcome the contamination issue.
References:
[1] cogitasocietatis. (2011, March 15). Admissibility of DNA Technology in the Indian Legal System. Retrieved July 29, 2020, from www.legallyindia.com website: https://www.legallyindia.com/views/entry/admissibility-of-dna-technology-in-the-indian-legal-system-html
[2] borkar, shubham. (2019, February 18). DNA Profiling in India (Towards the New Age DNA Technology Use and Application Bill, 2018) – Technology – India. Retrieved July 29, 2020, from www.mondaq.com website: https://www.mondaq.com/india/new-technology/782032/dna-profiling-in-india-towards-the-new-age-dna-technology-use-and-application-bill-2018#_ftnref1
[3] Dhar, T. (2019, June 16). DNA Test and Criminal Law: Legal or Illegal By: Teresa Dhar. Retrieved July 28, 2020, from Latest Laws website: https://www.latestlaws.com/articles/dna-test-and-criminal-law-legal-or-illegal-by-teresa-dhar/
[4]Aditya Pratap Singh, Admissibility of DNA in Indian legal system(16 June, 2017), Journal of Legal Studies and Research,http://jlsr.thelawbrigade.com/index.php/2017/06/16/admissibility-of-dna-in-indian-legal-system/#_ftn16.
[5] Journal of Legal Studies and Research. (2017, June 16). Admissibility of DNA in Indian legal system » The Law Brigade Publishers. The Law Brigade Publishers. Retrieved from https://thelawbrigade.com/criminal-law/admissibility-of-dna-in-indian-legal-system/#:~:text=Though%20there%20is%20no%20specific
[6] 2014 (3) Crimes 575 (Kant.)
[7] 2010 Cri L J 4341.
[8] mittal, silky. (n.d.). DNA Profiling and Indian Legal System. Retrieved July 28, 2020, from www.legalserviceindia.com website: http://www.legalserviceindia.com/legal/article-1169-dna-profiling-and-indian-legal-system.html
[9] (1993) 3 SCC 418
[10] (2003) 4 SCC 493
[11] MANU/DE/3701/2010: 2011(121) DRJ 563
[12] Source: Govt. of Kerala official website (www.Kerala.govt.)
[13] A.I.R. 1954 S.C. 297 (306): 1954 Cr. L.J. 865
[14] A.I.R. 1963 S.C. 1295: 1963 (2) Cr. L.J. 329
[15] A.I.R. 1975 S.C. 1378: 1975 Cr. L.J. 1111
[16] AIR 1961 SC 1808
[17] Mudiyanselage, D., Dimuth, D., & Gunawardane, N. (2009). An assessment of the impact of environmental factors on the quality of post-mortem DNA profiling. Retrieved from https://digital.library.adelaide.edu.au/dspace/bitstream/2440/51067/8/02main.pdf
[18] Furtado, R. (2016, June 28). Use of DNA Fingerprinting in Indian Criminal Law. Retrieved July 28, 2020, from iPleaders website: https://blog.ipleaders.in/use-dna-fingerprinting-indian-criminal-law/#_ftn3
[19] Tandon, N. (n.d.). Eastern Book Company—Practical Lawyer. Retrieved July 28, 2020, from www.ebc-india.com website: https://www.ebc-india.com/lawyer/articles/2004_8_17.htm#Note2
0 Comments