DNA testing
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This article is written by Vividh Jain, from Institute of Law, NIRMA University. In this article, the author talks about the problems faced by society after introducing DNA technologies in the administration of Justice and also presents the future aspects of this introduction.

Introduction 

Deoxyribonucleic Acid (DNA) is a sophisticated way of testing human identity. Revolution in the field of technology is at pace and its wide reach, acceptability and admissibility are the most powerful weapons used to overcome the poor economic growth and work with less potential. The technological revolution has a great impact on society and culture, which shifted the adaptability from old traditional methods to the new intellectual exercises. Technology also knocks the door of department administer justice, which creates a sensational debate on the problems and prospects of the application of DNA technology in the administration of justice. 

There is no doubt that DNA technology can be used as an effective and efficient tool in detecting the crime and to control the crime rate for the upliftment of society. But the problem comes when this DNA technology starts violating the basic human rights of an accused like Right to privacy as mentioned under Article 21 of the Constitution of India, 1950 and Right against self-incrimination as mentioned under Article 20 (3) of the Constitution of India, 1950. Meaning to say, this DNA technology can not be implemented in every legal system existing in India. The problem that many judges and lawmakers would face is how to establish a reasonable balance between these two conflicting interests of the society that arises after introducing or applying the DNA technology in the administration of justice. 

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DNA technology in the administration of justice

DNA technology has been used in both Civil and Criminal matters. When corroborating evidence and Disaster Victim Identification required in Criminal cases, DNA technology has been used. DNA can also be used to identify criminals with incredible accuracy where the biological evidence is required. In Civil matters, DNA technology is used to determine the genetic, blood relation, maintenance of a child, and kinship. DNA generally works or used in two ways to solve crimes. When a suspect is identified and his sample or DNA is going to be compared with the evidence obtained from the crime scene. This comparison makes it easy to determine whether the suspect had committed the crime or not. Another case comes, where the suspect has not been identified and the biological evidence obtained from the crime scene would be compared with the offenders’ profiles in DNA databases which helps in detecting the offender present at the crime site during the crime. 

How does DNA help in a fair trial

DNA is one of the most powerful investigation tools with an exception of identical twins which means that the DNA of every person differs from each other and no two people exist having the same DNA. DNA has an exceptional evidential value. If any DNA evidence has been collected from the crime scene, it establishes a direct link with the offender and also can eliminate the various suspects from suspicion. For example, during rape, biological evidence such as semen, blood, skin cells, body hair, etc, can be left at the crime scene or the victim’s body. The biological evidence obtained from the crime scene would be compared with the offenders’ profiles in DNA databases which helps in detecting the offender present at the crime site during the crime. This is how DNA technology help in a fair trial not just in sexual assault cases but also in cases related to kidnapping, domestic violence, murder, and also DNA technology to help Civil courts to solve the dispute matters of civil cases.

The effective DNA as an evidential tool helps in comparing and analyzing the elimination of suspects having legal access to the crime scene at the time of the crime. When DNA has been obtained from the crime scene, it can start eliminating the suspects those having access to the crime scene but their DNA is not matched with the biological evidence collected from the crime scene and that’s how this DNA technology helps in a fair trial by eliminating the innocent people who were present at the crime scene but not having any relation with the crime. 

Importance and relevance of forensic science and DNA technology in the legal system 

DNA technology is one of the most important tools produced by forensic science which assists the legal system in various types of cases. The recent revolution in forensic science, which is the by-product of modern genetic science, has a deep and great impact on the administration of justice. This genetic science produces a belief that the genetic structure which can be found in DNA molecules present in the cell of each human being, is always different and has a unique identity which means that the DNA of each and every person differs from each other and no two people exist having the same DNA. Only on the basis of the chemical structure of DNA present in the cells of each individual, a separate identity of each individual can be determined. Apart from the above-mentioned importance of DNA technology, it is also utilized as a new form of evidence because it has scientific accuracy, infallibility, and accurate objectivity. DNA technology has a great impact on the judiciary as it assists both the criminal as well as the civil court in the deliverance of justice. 

In order to determine the kinship in civil cases where mostly the maternity or paternity disputes arise between the parties, this DNA technology assists the civil court to reach a proper decision. In cases where the paternity and maternity of a child were questioned, mere comparison of DNA collected from the body tissues and body fluid of the child with his parents could offer the infallible evidence of biological percentage. The evidential value of DNA technology is quite sufficient to determine the succession cycle of a family because the proper sampling of body fluid and quality forensic examination is sufficient enough to present a good argument before the courts of law. 

Acceptability of scientific DNA evidence in courtrooms of the United States

The United States is also privileged with the great impact of DNA technology not only in the field of forensic or genetic science but also in the field of law and justice. In 1985, for the first time, a doctor of the University of Leicester, England, used DNA technology to aid the investigation agency in identifying the offender in a homicide and rape case. After this incident, DNA technology shone its light on the administration of justice in the United States and paved a way for the development of DNA technology in the United States. In 1929, in Frye’s case, the United States Supreme Court did not consider the evidential value of DNA technology and challenged the acceptability of scientific evidence, as DNA technology was in its initial stages and its testing was pursued in limited laboratories. The United States Supreme Court in Frye’s case ruled out that this scientific evidence has gained acceptance only in the field of genetic science, not in the field of law and justice. Hence, this verdict did not favour the admissibility of DNA technology in the United States’ courts because DNA technology was recently developed in the United States. 

Admissibility of DNA evidence in paternity dispute cases in India

In India, initially, judges took a conservative view regarding the evidential value of DNA technology in solving the maternity and paternity dispute cases. The Indian judiciary often faces problems in answering a question i.e. while deciding paternal responsibilities, biological percentage should be given priority over social percentage. DNA percentage testing can provide evidence that shows that a person has a blood relation or biological connection with a deceased person or can help a person to become a party to the suit. 

Section 112 of the Indian Evidence Act, 1872 says that if a child was born during the continuation of a valid marriage between his mother and any man or if a child was born within a period of 280 days after the dissolution of marriage and the mother remains unmarried during that period, it is the conclusive proof that the child is a legitimate child of that man, until and unless the man shows that he had no access to the mother of a child during the concerned period. Now, DNA testing can be used to determine the paternity of the child and can easily replace this section, as DNA testing can easily figure out the legitimacy of that child. But, DNA testing only determines the biological percentage, not the social percentage. 

In Kamti Devi v. Poshi Ram case, the apex court gave priority to social percentage over biological percentage in determining the paternity of a child and rejected the DNA technology which would help the apex court in determining the legitimacy of a concerned child. Later on, in the case of Sharda v. Dharampal, the Supreme Court considered the evidential value of DNA technology in deciding the matrimonial disputes. The apex court grants evidential value to DNA technology only in civil and matrimonial cases and not in criminal cases. Section 53 of the Criminal Procedure Code, 1973 has not specifically talked about DNA testing but somehow it empowers an investigating officer to examine accused with some scientific techniques. The section entitled police to collect hair, saliva, semen, blood, urine, etc. of the accused of the purpose of investigation. 

Contribution of the Daubert case

The Daubert’s case of 1993, proves as a godfather to the DNA technology in the United States. The US Supreme Court overruled its judgement laid down in Fyre’s case and provided evidential value to DNA technology. The apex court laid down some guidelines in order to determine the evidential value to this scientific evidence:

  1. whether this technique has a recognized standard that controls its implementation; 
  2. whether this technique has been reliably testes;
  3. whether this technique has been generally accepted by a community;
  4. to check its potential rate of error;
  5. whether this technique has conducted independently;
  6. whether this technique has been subject to publication or peer review.

After Daubert’s case, the admissibility of DNA technology as an evidential value in the United States’ courts rises. The United States legal system not only clears its backlog by using this technique of scientific evidence but also exonerating those prisoners which were previously held liable. This DNA technology exonerates those innocents which were earlier convicted in the United States and later on, various developed nations grant evidential values to this scientific evidence.  

Will the passing of such an order violate the right to personal liberty under Article 21 of the Indian Constitution?

In the case of Goutam Kundu v. State of West Bengal, the Supreme Court of India did not agree with the application of scientific evidence in the administration of justice. The apex court did not want to grant evidential values to DNA technology. Later in Sharda vs Dharampal, the apex court laid down that DNA technology has an evidential value in matrimonial cases and empowered the matrimonial courts to order any person to undergo a medical test. The apex court also held that this power of court would not violate Article 21 of the Constitution of India, 1950 as the right to privacy under Article 21 is not an absolute right and if in any case, the fundamental rights of both the parties clashes, the court of jurisdiction have to strike a reasonable balance between the competing right.  

A powerful tool in criminal investigations 

DNA testing has a great evidential value and could be established as a powerful tool in criminal investigation. Section 53 of the Criminal Procedure Code, 1973 has not specifically talked about DNA testing but somehow it empowers an investigating officer to examine accused with some scientific techniques. The section entitled police to collect hair, saliva, semen, blood, urine, etc. of the accused of the purpose of investigation. It shows that DNA technology would be useful in collecting crucial evidence against the offender. For example, during sexual offences like rape, biological evidence such as semen, blood, skin cells, body hair, etc, can be left at the crime scene or at the victim’s body. The biological evidence obtained from the crime scene would be compared with the offenders’ profiles in DNA databases which helps in detecting the offender present at the crime site during the crime.

Conclusion

Apart from the applicability of DNA technology in the administration of justice is a necessity, this scientific technology is not free from loopholes. Nobody gives clarification on whether DNA technology is against Article 20 (3) of the Constitution of India which talks about the Right against self-incrimination. Also, the genetic or DNA of two identical twins are the same and in this situation, it is hard to make any particular person liable. Here, the analyst puts questions on the credibility of this scientific evidence. Despite these criticisms, DNA testing has a great impact on the judiciary as it assists both the criminal as well as the civil court in the deliverance of justice. Hence, it is highly risky if a court acquits or convicts any person solely on the basis of scientific evidence or DNA evidence. The Judiciary should establish a unique balance between human evidence and scientific evidence.

References


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