Introduction
DNA (deoxyribonucleic acid) is the most basic genetic material found in the body cells of all human beings. It determines the behaviour, human and body character of an individual. It is basically a heredity material in humans that no two people (besides identical twins) share.[1] The use of DNA evidence in criminal investigations has revolutionalised the field of forensic science. It has proven to be a very reliable and accurate source of evidence and has been very successful in the field of investigation throughout the world. Since 1980s, countries across the world have been developing their investigation systems to inculcate the use of DNA profiling. Some have been very successful in establishing permanent and strong legislations for it, keeping in mind all its positive and negative aspects.
In India, DNA evidence is being used in criminal investigations for a long time and has gained greater significance in the past decade or so. While its application has largely been seen in issues concerning paternity, its usage in cases of rape and murder has also increased, Nirbhaya gang rape case and Arushi Talwar murder trial being the most significant ones.[2] The technology has helped identify the source of biological samples like blood, saliva, semen, skin cells, etc. found at crime scenes.[3] However, in India, the use of DNA evidence has not yet been able to reach its potential due to several issues most important of them being the lack of dedicated legislation.
Currently, in India, the courts have been allowing the collection and use of DNA evidence in cases by resorting to the provision in various acts through which it can indirectly allow for the collection of such evidence.[4] For instance, extended interpretation of Sections 53[5] and 54[6] CrPC allows for DNA tests as it handles vetting of the accused in the case by a practising medical professional and provides for the medical examination at the request of the arrested person, respectively. In 2005 the new provision of Section 53-A was added to CrPC via an amendment that mandates examination of the person accused of rape by a medical practitioner. The ambit of the examination includes blood, bloodstains, semen, swabs, hair samples, and DNA profiling.[7] The court herein also has the power to issue directions to the police to collect blood samples and conduct DNA tests for the purpose of further investigation.
Apart from these provisions, the Evidence Act[8] also allows for the admission of DNA evidence though not directly. Section 45 of the Act[9] deals with the opinion of the expert under which the scientific evidence of DNA has been accepted in several criminal cases. Thus, such evidence is regarded as a mere “belief” tendered by an expert.[10] Thus, as far as the legal framework in India is concerned, there is no existing legal provision that authorises the direct use of DNA sampling for criminal investigations.
When it comes to giving judgments based on such evidence, the courts have primarily maintained that the use of DNA evidence must be done keeping in mind the public interest and constitutional mandate. There should be a balance between public interest vis-à-vis the rights under Articles 20(3)[11] and 21[12] of the Constitution of India.[13] Besides the abovementioned aspect there are also concerns related to infrastructure (technical and scientific), scientific knowledge among the investigating agencies, and most importantly right to privacy.[14]
Keeping in mind all the above issues, an attempt was made by the Government of India to bring dedicated legislation that can formalise the use and application of DNA technology in India. The Bill is still pending in Parliament and no further debate over it has been made to formalise it into a law any soon. Technological advancement in crime scene investigation has been a necessity in India for a very long time and while the agencies keep updating its knowhow it does not seem enough when compared to the rapid advancements being made all over the world. The researcher’s attempt to analyse the Bill and outline its positive and negative aspects steps from that perspective.
Stumbling blocks to the implementation of the DNA Technology Bill
If one analyses the plethora of cases over use of DNA evidence one can be assured that there are some apprehensions about the ways in which such sensitive data can be used in the Indian scenario. This brings us to analyse the core issues which has become a hindrance in the implementation of the use of the technology as well as the upcoming DNA Bill. Some of the stumbling blocks in implementation have been stated below.
First and foremost is the independence of the forensic science institutions, which directly function under the law enforcement authorities and the respective Home Department.[15] Without having enough independence, there are higher chances of evidence tampering and mishandling.[16]Secondly, the forensic laboratories do not have the manpower required or even functioning infrastructure.[17] A lot of experts are required for proper research, people for communicating the progress between the investigators, and most importantly, between the forensic wing and the police.[18]Thirdly, the police and the investigating officers have to be fully equipped for handling the crime scene and collecting the evidence. At the present moment owing to improper or even lack of basic training required, the people deployed at the crime scene destroy the vital evidences which could have proved so if it had been collected by an official trained, as he or she would have applied the necessary knowledge with skill and diligence.[19] Lastly, and most importantly, India needs dedicated legislation that can legitimise the use of DNA evidence for investigations, and the same shall not be solely left for the court to determine. Formulation of a law is most likely to remedy all the abovementioned restrictions.
In addition to the abovementioned aspects, there still lie some greater challenges due to which the courts too are unwilling to use forensic evidence in a criminal investigation. Some of them, as noted by the courts are unprofessional conduct of physical evidence, including improper collection, or not collecting the evidence, preserving the evidence, no maintenance of chain of custody, as well as negligent and delayed dispatch of physical evidence for scientific analysis. Other reasons include not sending an accused for medico-legal examination, non-lifting of fingerprints by the investigating officer (IO) or when bloodstained mortal object had been sent for chemical examination without covering the same by a wrapper immediately after the seizure of the same. The courts are naturally compelled to reject the report.[20] There are also technical lacunas that lead to tampering of the evidence like delayed inspection of exhibits, non-mention of blood group in serologist’s report, improper tests, etc.
Underlying aspects of the Bill
DNA Bill — An outline
The DNA Technology (Use and Application) Regulation Bill, 2019 was set in motion and passed in the lower house in the year 2019, however it expired even before it could be presented before the upper house. It was reintroduced in July 2019 and is now pending in the Lok Sabha as it has been referred to the Parliamentary Standing Committee. The Bill seeks “to provide for the regulation of use and application of deoxyribonucleic acid technology for the purposes of establishing the identity of certain categories of persons including the victims, offenders, suspects, undertrials, missing persons and unknown deceased persons and for matters connected therewith or incidental thereto”.[21]
The Bill establishes an independent DNA Regulatory Board tasked with numerous functions, most important of which are to supervise DNA data banks and laboratories[22], to lay down procedures for communication of information relating to DNA profile in civil and criminal proceedings[23], to ensure that collection and use of DNA samples according to international guidelines relating to the right to privacy of individuals and issues concerning civil liberties[24], and to make recommendations for the application of privacy protection in relation to the access to, or the use of, DNA samples.[25] It shall also act as an advisory to the Central and State Government on matters related to DNA labs, databanks, and everything related thereto.[26]
Every DNA laboratory has to get accreditation from the Board and strictly follow all guidelines for collection, storage, testing, and analysis of DNA sample. The data collected will be shared with the national and the regional DNA databank. The labs will be responsible to ensure proper training of its employees for upgrading their skills in the field of DNA testing and also establish necessary infrastructure and security systems to avoid contamination of samples. It is mandated for the labs to destroy the samples of the person concerned and inform them, in instances where the case has not been disposed or an order has not been passed by the court.[27]
Section 21 of the Bill[28] makes it mandatory for the investigating authorities to take prior consent from the person whose DNA sample is required except for some specified offences which are basically offences punishable with death or imprisonment for a term exceeding seven years. The Bill also extensively lays down the manner and sources from which samples can be collected which include bodily substances, clothing, intimate and non-intimate bodily substances, etc.
Chapter V deals with the most essential aspect of the Bill which is the DNA databank prescribing for the establishment of national and regional DNA databanks. The regional data bank has to share the data collected with the national data bank. There is also a procedure laid down for sharing and communication of DNA profiles. The profiles shall be communicated only to authorised persons, and no one else, and no comparison shall be made if the person is neither an offender nor a suspect or an undertrial.
According to Section 31 the data stored in the crime scene index will be retained and shall be removed only under circumstances as prescribed. It can also be removed on request from the person who does not fall under the category of offender, suspect or an undertrial.[29] The Bill ensures that no information related to DNA profiles or any other record is leaked and any kind of data contained in the data bank or with the labs is kept secured and confidential.[30] Moreover, the information is only to be shared for limited purposes to limited number of people as prescribed in the Bill.
Lastly, a separate section of the Bill discusses offences and provides for penalties and punishments for them. Offences include unauthorised disclosure of information from the data bank, unauthorised use of DNA samples, unlawful access to data, destruction or contamination of biological evidence, etc.
Having analysed the essential features of the Bill it is important at this juncture to weigh the positive and negative aspects of the Bill.
Positive aspects of the Bill
While a majority of the debate surrounding the Bill have reflected the negative aspects of it rightly so, the researcher believes that there are still a few positive aspects that cannot be overlooked. Firstly, the composition of the Board Committee is very diverse.[31] In any regulatory body, it is essential to have members who have the required expertise in the field and can put an independent thought over the functioning of the Board and not get influenced by the executive, which as a matter of fact, does happen in many Board Committees. The Bill provides for a regulatory body which comprises people not only belonging to the scientific or forensic field but also those who represent human rights groups (National Human Rights Commission of India) and investigating agencies (National Investigating Agency) who are directly involved in investigating crime scenes.[32]
Secondly, the Bill ensures that no unnecessary DNA profiles are kept in the databank especially of those people who are neither a suspect nor an undertrial or an offender. Moreover, it has given an option to a citizen whose profile has been entered in the databank to get the information removed by writing to the databank. Even for those whose profile has been retained the communication of such profiles has been kept to very limited number of authorities and any violation of the same has been penalised. This measure is likely to reduce any misuse of the profiles saved in the databank. This can also be understood as an extension of the principle of “right to be forgotten” under right to privacy.
Lastly, the Bill puts an obligation on Board to adopt practices concerning collection of samples which do not infringe the right to privacy of individuals and are collected keeping in mind all ethical and human rights issues, including international guidelines by UN, relating to DNA testing. Even though unfortunately India yet does not have any dedicated legislation for data protection and privacy but this provision will ensure that issues concerning civil liberties and other social implications in adopting DNA technology is kept in mind. This function is not just restricted to the Board but also provides for giving recommendation to the Government for the application of privacy protection in relation to the access to, or the use of, DNA samples and their analyses and other matters related to it.
Negative aspects
The biggest prerequisite to any law which seeks to infringe the privacy of an individual is that it must ensure that the personal information collected through it is not breached by authorities collecting it and in case of any such breach there must be strict laws to protect the individual and punish the violator. The Bill has raised many questions related to rights of privacy to citizens and rightly so as there is no law in our country which prescribes any protection from the leak of data. As iterated above the Bill has made many provisions to ensure that the authorities handling the DNA profiles containing huge amount of personal information is kept confidential and not shared negligently, however, there are no specific penalties levied on the authority (national/regional DNA databank) in case of breach of such data. The larger authority is not made directly liable in cases of mishandling.
This issue is of special concern because our criminal investigation system lacks training and proper equipment to effectively use DNA technology and is vulnerable to abuse in terms of planting, manipulation or mishandling of evidence both at the collection and examination level. There are many technical lacunas which lead to tampering of the evidences.
Secondly, Section 57 of the Bill[33]completely ousts the jurisdiction of the court in respect of any matter which is to be determined by the Board meaning thereby that the courts cannot question any act of the Board giving the regulatory board overriding authority to take actions with no check mechanisms. This provision is arbitrary and must not be implemented. In absence of a law which can hold the authority liable for infringing the fundamental right of privacy of its citizens the only option left for a citizen is to approach the courts in case of any violation of rights. An ouster of court’s jurisdiction shall leave no remedy if the Board takes any arbitrary decision which is unlawful.
Thirdly, for any investigating authority to work without the interference of the executive or legislature it is important to keep it independent wherein its functioning and decision-making power cannot be strongly affected by the Government. The Bill has given a lot of power in the hands of the Government to make recommendations and issue directions to the Board to the extent that its decision shall always prevail in case of conflict between the Government and the Board. Forensic science institutions which directly function under the law enforcement authorities and the respective Home Department is less likely to be independent and without having enough independence there are higher chances of evidence tampering and mishandling.[34]
Conclusion and suggestions
The need for using forensic and especially DNA technology in criminal investigation has increased in the Indian scenario for quite some time now. In the 20th century DNA was discovered and since then it has proved to be very efficient and one of the best discoveries impacting greatly the medicine and science of today. At present it is helping in guiding the civil as well as criminal disputes in India. India still faces a plethora of issues with respect to use of DNA evidence in criminal investigations.
In the backdrop of all the technical issues that the use of DNA evidence faces, the most prominent legal issue which looms is the right to privacy of the individuals giving samples and allowing for all their personal information to be accessed by authorities. Privacy has been guaranteed as a fundamental right by the Supreme Court, and only by establishing a legal provision for justified reasons can it be taken away. Unless there is a dedicated law that authorises the use of such data, ensures that the data is secured, and in case of a leak or misuse holds the authority having access to that data liable for the breach, complete faith on the Government cannot be reposed.
The DNA Technology (Use and Application) Regulation Bill introduced by the Government can be seen as a positive step towards legitimising DNA profiling; however, it is not free of concerns raised by the Parliamentary Standing Committee on Science and Technology, Environment and Forests after an examination. Even though it addresses the privacy concerns fairly, it has left enough loopholes for the misuse of data, and without any separate law for data protection, this aspect of the Bill remains in the dark. While there are few concerns with respect to the Bill, it is an undeniable fact that India needs a law like this which will also serve beneficial for a lot of other purposes. The Government of India must enact the Data Protection Bill before getting any new legislation which is likely to breach individual privacy. This law will provide recourse to people whose rights are violated.
The Government must definitely put an effort to establish its system as precise and powerful as the one developed in England, which has experience of many years in using DNA technology. No system is devoid of mistakes and what makes it better is the learning from those mistakes. India must analyse the shortcomings of England’s system and implement the Bill keeping our country’s demographics and other such factors in mind. As far as the Bill is concerned the researcher believes that the following recommendations would be helpful in making it efficient.
Firstly, extensive training of all the people concerned with investigation of the crime scene and collection, sampling, profiling and uploading of DNA evidence is required. At the current situation we cannot escape from tampering of evidence as the police officers are not well-equipped to take samples and protect them from getting leaked or destroyed. Police officers at all levels of authority have to be trained to both collect and upload the relevant data into the database from where it can go for profiling, etc.
Secondly, it would be even better if the collection and sampling is done by an agency which is independent of the police in order to negate the fear of collusion of investigating agencies and those collecting evidences. Similar to a system in England the law enforcement agency responsible for taking care of such crucial evidence must be able to take independent decisions and speak for themselves rather than what the Government wishes to convey.
Thirdly, since we are the beginning stage of making a DNA databank it will be a huge task to collect so many samples, profile them and store the data of such a huge population. Moreover, our criminal system still lacks the required infrastructure and investment for maintaining a large databank. It is advisable to rather collect and store data only from the crime scenes, which will make the process more cost-effective in the beginning and reduce the probable inaccuracy of results.
Lastly, the Bill must provide a provision for education of people belonging to the legal fraternity who will be an important part of the system. Training has to be provided to judiciary on forensic scientific evidence, continuance of education for the legal fraternity is likely to contribute towards educating them.
More research and development in the area of law is needed, and scientific certainty in forensic science has to be developed. Once these are established then even the implementation of a complex law will ensure effective use of scientific technology and be of massive help in both civil and criminal investigations. But an arbitrary law and lack of scientific temper can create a greater mishap in the system and affect rights of individuals.
*Fourth year student, BA LLB (Hons.), Narsee Monjee Institute of Management Science, Mumbai. Author can be reached at khyatijain482@gmail.com.
[1]What is DNA?, Medline Plus, https://medlineplus.gov/genetics/understanding/basics/dna/.
[2]Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1; Rajesh Talwarv. CBI, 2013 SCC OnLine All 13054.
[3]A Simplified Guide to DNA Evidence, Forensic Science Simplified, <http://www.forensicsciencesimplified.org/dna/how.html>.
[4]Dr Himanshu Pandey and Anhita Tiwari, Evidential Value of DNA: A Judicial Approach, Bharati Law Review 12, 17 (2017).
[5]Criminal Procedure Code, 1973, S. 53.
[6]Criminal Procedure Code, 1973, S. 54.
[7] Criminal Procedure Code (Amendment) Act, 2005, S. 53-A.
[10]Subhash Chandra Singh, DNA Profiling and the Forensic Use of DNA Evidence in Criminal Proceeding, 53 JILI (2011) 195, 214.
[11]Constitution of India, Art. 20(3).
[12]Constitution of India, Art. 21.
[13]Thogorani v. State of Orissa, 2004 SCC OnLine Ori 297.
[14]Subhash Chandra Singh, DNA Profiling and the Forensic Use of DNA Evidence in Criminal Proceeding, 53 JILI (2011) 195.
[15]V.R. Dinkar, Forensic Scientific Evidence: Problems and Pitfalls in India, 3 International Journal of Forensic Science & Pathology, 79, 80 (2015).
[16]V.R. Dinkar, Forensic Scientific Evidence: Problems and Pitfalls in India, 3 International Journal of Forensic Science & Pathology, 79 (2015).
[17]V.R. Dinkar, Forensic Scientific Evidence: Problems and Pitfalls in India, 3 International Journal of Forensic Science & Pathology, 81 (2015).
[18]V.R. Dinkar, Forensic Scientific Evidence: Problems and Pitfalls in India, 3 International Journal of Forensic Science & Pathology, 80 (2015).
[19]V.R. Dinkar, Forensic Scientific Evidence: Problems and Pitfalls in India, 3 International Journal of Forensic Science & Pathology, 80 (2015).
[20]A. Dutta, R.C. Arora and Dr P.C. Sarmah, Analysis of Problems related to Forensic Examination in Offences against Human Body and Need for Auditing, 58 IPJ 10 (2011).
[21]DNA Technology (Use and Application) Regulation Bill, 2019.
[22]DNA Technology (Use and Application) Regulation Bill, 2019, S. 12(c).
[23]DNA Technology (Use and Application) Regulation Bill, 2019, S. 12(g).
[24]DNA Technology (Use and Application) Regulation Bill, 2019, S. 12(i).
[25]DNA Technology (Use and Application) Regulation Bill, 2019, S. 12(k).
[26]DNA Technology (Use and Application) Regulation Bill, 2019, S. 12(a).
[27]DNA Technology (Use and Application) Regulation Bill, 2019, S. 20.
[28]DNA Technology (Use and Application) Regulation Bill, 2019, S. 21.
[29]DNA Technology (Use and Application) Regulation Bill, 2019, S. 31(2) “The Director of the National DNA Data Bank shall remove from the DNA Data Bank the DNA profile,—
(i) of a suspect, after the filing of the police report under the statutory provisions or as per the order of the court;
(ii) of an undertrial, as per the order of the court,
under intimation to him, in such manner as may be specified by regulations.
(3) The National DNA Data Bank shall, on receiving a written request of a person who is neither an offender nor a suspect or an undertrial, but whose DNA profile is entered in the crime scene index or missing persons’ index of the DNA Data Bank, for removal of his DNA profile there from, remove the DNA profile of such person from DNA Data Bank under intimation to the person concerned, in such manner as may be specified by regulations.”
[30]DNA Technology (Use and Application) Regulation Bill, 2019, S. 32.
[31]DNA Technology (Use and Application) Regulation Bill, 2019, S. 4.
[32]DNA Technology (Use and Application) Regulation Bill, 2019, S. 4.
[33]DNA Technology (Use and Application) Regulation Bill, 2019, S. 57.
[34]V.R. Dinkar, Forensic Scientific Evidence: Problems and Pitfalls in India, 3 International Journal of Forensic Science & Pathology 79, 80 (2015).