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Dna Technology and Its Application in the Administration of Justice: Problems and Prospects
by Jyotirmoy Adhikary*
Cite as : (2004) 5 SCC (Jour) 6
Introduction
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.
Though this technology is widely applied in many developed countries, here I am trying to enumerate the reaction or response of the lawmakers and the judges of USA and India in dealing with the above problems. Before that, at the outset, I am giving below a brief idea about the importance and relevance of this technology in forensic science as well as criminal justice system.
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.
DNA technology, as a latest tool of forensic science, is the by-product of modern genetic science. The said science established the belief that the pattern of chemical signals i.e. the genetic structure which may be discovered with the DNA molecule in the cells of each individual, is unique and different in every individual. 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 hereinabove, 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.
It is pertinent to note that ever since this new technology was introduced in the justice-delivery system of USA it has become obligatory on the part of the laboratories to provide error-free accurate and unbiased DNA testing. Thus, for the purpose of quality control of DNA analysis, the US Government established under the FBI Laboratory Division Technical Working Group in DNA Analysis Methods (TWGDAM) in the year 1988. This TWGDAM and subsequent DNA Advisory Board (DAB), which was created in the year 1998 under the statute, namely, the DNA Identification Act of 1994, provide the quality assurance programme areas for forensic DNA testing laboratories. Those also provided planning and organisation, personal qualifications and training equipments, materials, facilities, evidence-handling procedures, validation, analytical procedures, proficiency testing, casework documentation, interpretation, report writing, review, safety and audit set of the laboratories.4 Moreover, the said DNA Identification Act, 1994 authorised FBI to establish the combined DNA Index System (CODIS) which consists of three DNA database system, namely, the local DNA Index System (LDJS) where information of the laboratories was kept and also State DNA Index System (SDIS) and National DNA Index System. Thus, the said DAB standard, TWGDAM guideline and also the new DNA legislation have helped to ensure the reliable use of DNA technology in judicial proceedings in USA. In doing so, judges have to maintain susceptible balance between several constitutional rights of the individual like right to privacy, right against self-incrimination etc. and the application of this new technology for protecting social interest.
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.
Proposal for legal reform of Section 112 of the Evidence Act
When our Evidence Act was enacted, the legislature did not anticipate the revolutionary change in society by virtue of advancement of science and technology and as such, though society has changed, law is lagging behind. Therefore, the Evidence Act is required to be changed in the light of the changing social condition. It is pertinent to note that of late, on the basis of the recommendations made by the Malimath Committee8 the Law Commission of India proposed that Section 112 of the said Act should be revised 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 eighty 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) sub-clause (ii) or sub-clause (iii) has been conducted in a scientific manner according to 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, that man is not the father of the child. Provided, further that where that man refuses to undergo the tests under sub-clauses (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 marriages which are declared nullity or avoided by dissolution, shall nevertheless be legitimate.”9
It transpires from the aforesaid proposal that the Law Commission has recommended two more exceptions that where there is more stringent proof conclusive proof will be the standard. They have also dealt with cases of avoidance of marriage and nullity apart from dissolution of marriage.
It is worthwhile to mention here that in Sharda v. Dharmpal7 the Supreme Court consciously avoided one controversial question — if an accused of a criminal case refuses to give his blood sample for DNA testing, does he get protection of Article 20(3) of the Constitution? In the aforesaid case Sharda v. Dharmpal7, the Supreme Court approved the application of DNA technology in civil or matrimonial disputes but whether its applicability in criminal cases is barred by Article 20(3) of the Constitution of India or not — this question has still remains unanswered. Therefore, in most of our Supreme Court judgments, specially in criminal cases where acceptability of DNA evidence has come in question, the Hon’ble Judges in deciding cases relied upon unscientific traditional evidence rather than scientific DNA evidence, although they never raised any question regarding the scientific accuracy of this evidence. Thus our legal system is not still ready to accept and utilise these new scientific advantages as a fresh means of ascertaining the truth.
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. 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.
2. 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. 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. 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.
3. 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.
4. 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.
5. In the line of the US DNA Identification Act of 1994, we have to make a specific DNA legislation which would authorise to set up the combined DNA Index System (CODIS), which consisted of three tiers of DNA data, namely, the Local DNA Index System (LDIS), which consisted of information installed by the laboratories of the local police and sheriff departments, then State DNA Index System (SDIS) which allowed the individual local laboratories to exchange information throughout the State, and the National DNA Index System (NDIS) that allowed States to share information between each other on a national scale. This infrastructural set-up, laid down in the said legislation, will provide error-free result of DNA testing in our country.
6. DNA sampling involves intrusion into three forms of individual privacy; bodily privacy in cases where the sample is taken from a person’s body; genetic privacy where predictive health and other information about the person is obtained from the sample; and behavioural privacy where the information is used to determine where a person has been and what he has done. Privacy and respect for human dignity need not be abandoned when balancing civil liberties with the larger interests of the community. Formulation of sound privacy principles can enhance the integrity and legitimacy of DNA profiling. 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. Legislation should be enacted to ensure that only government-recognised laboratories in accordance with the regulatory requirements that may be statutorily laid down conduct DNA parentage testing in India. The Family Courts Act should be amended to provide a special chapter dealing with DNA parentage testing and adequate provisions should be made thereunder to ensure that parentage testing meets the highest technical and ethical standards, particularly in relation to consent to testing, protecting the integrity of genetic samples, and providing counselling. The parentage testing reports should be admissible in evidence only if made in accordance with the statutory requirements.
8. 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.
Lastly, under Article 245 of the Constitution of India, Parliament is legislatively competent to make laws with respect to the Union agencies and institutions for professional, vocational or technical training, promotion of special studies or research, or scientific or technical assistance in the investigation or detection of crime and with respect to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions (Entries 65 and 66 of the Union List).
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 case10 was the exception because his Defense Attorney was able to attack the DNA evidence presented by the prosecution. Actually, though the entire process of procuring DNA evidence is controlled by human agencies (i.e. investigating officers and forensic scientists), there is ample chance for manipulation, tampering of such evidence by corrupt officers or scientists which, needless to say, highly prejudices the accused person. The science may be infallible, but human action, which controls the result of the scientific forensic examination, is always fallible and there is probability of manipulation and tampering with the scientific evidence.
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.”
Conclusion
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.
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