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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
COVER STORY

DNA PROFILING - Comes of Age

Anil Malhotra

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 on 27 th April, 2012 in Rohit Shekhar v. 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 v. State of Karnataka, (2010) 7 SCC 263 has held that Narco-analysis, 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 v. 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 v. 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.

  • On September 26, 2005, in State of U.P. through CBI v. 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 of the appeals on the basis of material collected in evidence, set aside the High Court orders and cancelled the bail bonds and directed the respondents to surrender forthwith.

  • Maninder Pal Singh Kohli accused of murdering Hannah Foster in Hampshire in 2003 was apprehended in India and extradited to UK by the 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 re-oriented for the purposes of utilizing the advantages of modern scientific discoveries and technological advancements in the justice delivery system.

DNA fingerprinting is being 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 science may be foolproof, 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.

Depending on the individual facts and circumstances in different cases over lengths of time, varied views have emerged from the Apex Court vis-à-vis admissibility and credibility of DNA profiling as cogent evidence before Courts of law. Even though Medical Jurisprudence has immensely benefited the legal arena, the fact remains that DNA fingerprinting has no statutory recognition.

In Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418, 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 could not be accepted. It was also held that no person could be compelled to give sample of blood for analysis against his will and no adverse inference can be drawn against him/her for such refusal.

In Kamti Devi v. Poshi Ram , (2001) 5 SCC 311 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.

However, in total contrast, in Sharda v. Dharmpal , (2003) 4 SCC 493, the Apex Court took a very positive view regarding the importance as well as the admissibility of medical evidence in matrimonial matters. The Supreme Court categorically summed up its conclusions as hereunder:

" 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 a turn around, the Apex Court in Banarsi Dass v. Teeku Dutta , (2005) 4 SCC 449, following Goutam Kundu v. State of West Bengal , (1993) 3 SCC 418, while determining the question whether a direction can be given for conducting a DNA test in proceedings for the issuance of a succession certificate, declined the same and held that DNA test is not to be directed as a matter of routine. It was held by the Court that even though the result of a genuine DNA test is said to be scientifically accurate but it is not enough to escape the conclusiveness of section 112 of the Evidence Act. According to the Court if a husband and wife are living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. Therefore, in law, this presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities.

In Kamalanantha v. State of Tamil Nadu, (2005) 5 SCC 194, in a case of conviction for rape of 13 Ashram girls and murder of one of its inmates, the reliance on reports of DNA tests on dead foetus to establish paternity to prove rape was sought to be dislodged in appeal on different grounds. Rejecting the challenge, the Apex Court upheld the veracity of the DNA reports which were held to be good testimony for convicting the accused.

A perusal of some of the decisions in the last 20 years quoted above indicates that in the absence of any statutory recognition to DNA as credible evidence, its acceptance may vary at the discretion of the Court trying a civil or criminal case. Statutory inferences to the contrary dispel scientific results of DNA evidence. Hence, views vary on a case-by-case approach depending on the debated facts and circumstances which necessitate testing the credibility of DNA evidence.

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. 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.

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.

 
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