A MILESTONE ACHIEVED - DNA PROFILING COMES OF AGE

DNA Testing Enforceable

A valuable right of a party to prove paternity by DNA testing has been tried, tested and proved. A person can now be physically compelled to give a blood sample for DNA profiling in compliance with a Civil Court order in a paternity action. The erudite judgment of the Delhi High Court of 27 April in Rohit Shekhar Vs. Narayan Dutt Tiwari, has held that once a matrimonial or civil court exercises its inherent power to order a person to submit to a medical examination or it directs holding of a scientific, technical or expert investigation, which is resisted or refused by a party, the Court is entitled to enforce such direction and not simply take the refusal on record to draw an adverse inference therefrom. The Court also settled the issue that such mandatory testing upon an unwilling person is not violative of the Right to Life or privacy of a person under Article 21 of the Constitution though the power to direct a DNA test should be exercised after weighing all “pros and cons” and satisfying the “test of ‘eminent need’”. However, this right has been restricted to the Civil Courts only by holding that the same reasoning cannot be applied in the context of criminal cases as the Supreme Court in Selvi Vs. State of Karnataka (2010) 7 SCC 263 has held that Narcoanalysis, Polygraph (Lie-detector) test and BEAP(Brain Electrical Activation Profile) conducted against the will of a person are impermissible under criminal law where an accused cannot be compelled to make self incriminating statements to be a witness against himself.

SOME PREVIOUS INSTANCES

• On October 30, 2006, in CBI Vs. Santosh Kumar Singh, the Delhi High Court sentenced the accused to death for the rape and murder of a law student on January 23, 1996.  The acquittal was turned into conviction by the High Court, amongst other grounds on the basis of the DNA Test conducted in the case by The Centre for Cellular and Molecular Biology, Hyderabad, which had clearly established the fact of rape even though the surgeon who had conducted the post mortem had ruled out rape.  The Supreme Court has affirmed both the findings and the said sentence.

  
  

• On December 6, 2005, in Nirmaljit Kaur Vs. The State of Punjab, the Apex Court relying exclusively on report dated August 30,2005, for “DNA Typing Evidence For Establishing Maternity” came to the conclusion that the child produced before the Court is not the real child of the petitioner and that the petitioner’s real child is in the custody of the respondents elsewhere. The Supreme Court also held that “A perusal of the entire proceedings in this Court and the proceedings pending before the other Courts would only go to show the respondents’ evil desire to grab the property and to make the life of the petitioner-a widow with a girl child miserable.” The respondents’ were also convicted for Contempt of Court.

  
  

• On September 26, 2005, in State of U.P. through CBI Vs. Madhumani Tripathi, the State of Uttar Pradesh through CBI aggrieved by the orders passed by the Allahabad High Court releasing the accused on bail, filed appeals before the Supreme Court in a case of murder where the DNA reports showed the accused as the father of a six month feotus found in the womb of the deceased. The Supreme Court while disposing off the appeals held that on the basis of material collected in evidence, the Supreme Court set aside the High Court orders and cancelled the bail bonds and directed the respondents to surrender forthwith.

  
  

• In an international perspective in 2007, the Jamaican Police probing the murder of Pakistan’s cricket team coach Bob Woolmer had sought the DNA samples from everyone in the hotel where the deceased was allegedly said to be strangulated. According to the police, as reported, DNA samples were sought from all the members of the West Indies, Ireland and Pakistani teams.

  
  

• Maninder Pal Singh Kohli accused of murdering Hannah Foster in Hampshire in 2003 was apprehended in India and extradited to UK by British Police in 2007 after his wife consented to DNA testing from their two sons and Forensic Science Service was able to infer a DNA profile for the fugitive criminal from their DNA which matched the DNA of the semen of the accused found on the clothes of Hannah Foster.

In view of the above quoted instances, today, the most debatable question which generates thoughts amongst jurists, judges, scientists, lawyers and academicians, irrespective of any legal system, is as to how the present value based system of justice requires to be changed or modified or reoriented for the purposes of utilizing the advantages of modern scientific discoveries and technological advancements in the justice delivery system. 

DNA FINGERPRINTING- INPUTS AND ADVANTAGES

This science is used as a new form of circumstantial evidence, which is placed on a higher pedestal than 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-swapping matters, succession disputes, maintenance proceedings and matrimonial disputes etc. For instance, in case of disputed paternity or maternity 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 reliable evidence of biological parentage within a short span of time. No other evidence or corroboration is required because timely medical examination and proper sampling of body fluids followed by quality forensic examination can offer irrefutable evidence, avoiding the need of protracted Court proceedings.

Regardless of the fact that the science may be foolproof, but the fact remains that human action which controls the result of this scientific forensic examination may be questionable. There is also the lurking probability of manipulation and tampering of this scientific evidence. In instances of organized crime, rioting and public massacres, DNA samples can be fudged by deliberate action. This apart, the infallible results of the scientific process is otherwise apparently unassailable.  

CHANGE & REFORMS IN THE PRESENT SYSTEM: NEED OF THE HOUR

§  The vigilant search for truth is the hallmark of our criminal justice system. Science and law, two distinct professions have increasingly become intermingled for ensuring a fair process and to see that justice is done. The legal system today has to deal with novel scientific evidence, which has posed new challenges for law. Many of these dilemmas arise from fundamental differences between legal and scientific processes. Scientific evidence has accurate fact-finding results without uncertainties, which accompany legal decision-making. However, if these scientific investigations do not find statutory recognition, their reports may or may not be accepted in the discretion of the Court. DNA profiling in criminal cases is one such paradox.

§  The 185th Report of the Law Commission of India on the review of the Indian Evidence Act, 1872, dated March 13, 2003 has recommended that with reference to proof of paternity, Section 112 of the Evidence Act be amended. Three other exceptions by way of blood group test, DNA investigations, and medical tests to prove impotency have been recommended to be introduced other than non access of parties to each other.

A reading of the above shows that if the above recommendation is accepted and incorporated in the Evidence Act, it may be the first Indian legislation to give statutory acceptance to DNA investigations conducted by consent of parties. Furthermore, it will dispel the existing requirement of proof where other than non-access of parties, even DNA investigations are not considered conclusive proof to rebut legitimacy. As of now if the DNA result does not match, the identity of the person is not established. But, surprisingly, the contrary is not true. May be the amended position will be a harmony in reality.

CONCLUSION: SO NEAR YET SO FAR

£  In Western Countries, DNA test and profile is now widely employed. In our country too, systematic programme and scientific planning ought to be started for the use of DNA technology. Orientation programmes, seminars, workshops, publications and awareness campaigns ought to be carried out for popularizing and creating awareness of the benefits of DNA tests. All concerned functionaries in the civil and criminal justice delivery system in general and the police, Courts and correctional institutions in particular must be acquainted with this science.  A fusion of knowledge of forensic sciences and new DNA technology will not only lead to quick detection of crimes but will also be useful in the prevention and control of crimes. Needless to add, civil disputes will also find quick resolution.

£  A serious endeavour should be made to emphasize the need for recognition of an independent body which has been called the DNA Profiling Advisory Committee and implement quality control measures with reference to DNA profiling, to provide recommendation on the use of current and future DNA methods, to draft an appropriate legislation for all issues concerning DNA profiling, to safeguard the rights of individuals thereunder, and to create a National DNA Bank for aiding Criminal Justice System;

£  Immediate steps should be taken to make suitable changes in the Code of Criminal Procedure 1973, Indian Penal Code 1860, Indian Evidence Act 1872, The Family Courts Act 1984, and all other prevalent family law legislations in India to provide for statutory amendments to recognize results of DNA investigations and to provide for DNA tests and profiles as authentic modes of proof in matters of civil, criminal and matrimonial disputes.

In sum and substance, rather than leaving it to a case by case approach of the Courts, clear legislation is the need of the hour. How long will it take before DNA evidence can be universally accepted as reliable evidence, depends on the protagonists of change. It may also be said that the existing value based criminal justice system cannot be done away with and a balance has to be struck between the modern system and the existing pattern. It may be unsafe to convict or acquit a person exclusively on the basis of DNA evidence but, its scientific results cannot be ignored in achieving the truth for justice. It may be remembered that the DNA witness is unstoppable and given a chance it will speak the truth and only the truth. Despite vast benefits, in the field of law, medical jurisprudential techniques are not treated as primary or secondary evidence till date. The present Indian Evidence Act, continues to treat technical findings such as results of DNA tests as expert evidence. This stalemate will continue till a suitable legislation is enacted by the Parliament. It is sincerely hoped that the proposed Bill for recognizing DNA as evidence sees the light of the day at the earliest. Ends of justice demand that it should not be further delayed. To enable non-resident Indians to be benefited by DNA evidence in matters of determining paternity in surrogate arrangements and resolving consequential immigration issues, such amendments would be extremely beneficial. Likewise, in matters of ascertaining and establishing evidence in international crimes, DNA evidence would assist Indian law in clinching the culprits with certainty.