Law And Medicine - Evidentiary Value Of DNA Profiling In Indian Criminal Trials
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Category: Criminal Law
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LAW AND MEDICINE: EVIDENTIARY VALUE OF DNA
PROFILING IN INDIAN CRIMINAL TRIALS
Aarti Sahu, KES' Shri. Jayantilal H. Patel Law College
ABSTRACT
This research examines the evidentiary value of DNA profiling in Indian criminal trials, analyzing its scientific foundations, legal framework, and constitutional implications. The study explores the evolution of DNA evidence from laboratory science to courtroom admissibility, detailing key analytical methods including Restriction Fragment Length Polymorphism (RFLP), Polymerase Chain Reaction (PCR), Short Tandem Repeat (STR) analysis, and Mitochondrial DNA analysis. The research identifies the distinctive characteristics of DNA evidence—uniqueness, stability, reliability, durability, heritability, and versatility—that establish its forensic value.
The study critically assesses India's current reliance on provisions in the BNSS that were not designed for modern forensic techniques, particularly examining Sections 51, 52, 53, and 183A which govern collection of biological samples during investigations. The research highlights significant challenges in DNA evidence handling, including maintaining chain of custody, mitigating cognitive and confirmative biases, and meeting legal admissibility standards. Constitutional concerns regarding privacy rights and protection against self-incrimination are examined alongside the regulatory framework established by the DNA Technology Bill, 2019. The study concludes by proposing a balanced approach that leverages DNA evidence's forensic potential while establishing adequate safeguards for fundamental rights, drawing lessons from international jurisdictions to inform India's regulatory approach.
INTRODUCTION
DNA profiling has emerged as a transformative forensic tool in criminal investigations, fundamentally altering how evidence is collected, analyzed, and presented in courts worldwide. This molecular technique, which examines the unique genetic markers of individuals, offers unprecedented precision in identifying perpetrators and exonerating the innocent. In India's criminal justice system, DNA evidence has gained increasing prominence, yet its implementation faces significant legal, constitutional, and regulatory challenges. This research examines the evidentiary value of DNA profiling in Indian criminal trials, tracing its evolution from laboratory innovation to courtroom application.
DNA testing can determine whether biological material from crime scenes matches reference samples, providing statistical assessments of match probability that far exceed the reliability of traditional forensic methods. The acceptance of this evidence has progressed through several phases, from initial uncritical admission to more rigorous scrutiny under formalized admissibility standards. India currently lacks specific legislation governing DNA evidence, instead relying on provisions in the Criminal Procedure Code and Indian Evidence Act that were designed before the advent of modern molecular techniques. Sections 51, 51A, 53, and 183A of the BNSS provide basic authorization for biological sample collection, while Section 45 of the IEA allows expert testimony, but these provisions offer inadequate guidance for the complex issues raised by genetic evidence.
The collection and analysis of DNA samples raise significant constitutional questions regarding the right to privacy and protection against self-incrimination. DNA analysis potentially invades bodily, genetic, and behavioral privacy - concerns that have heightened significance since privacy was recognized as a fundamental right in India. Similarly, compelled DNA sampling tests the boundaries of Article 20(3) protections against self-incrimination, creating tension between investigative needs and constitutional rights. The DNA Technology (Use and Application) Regulation Bill represents an attempt to address these regulatory gaps, but faces criticism for inadequate privacy safeguards, problematic consent provisions, insufficient regulatory independence, and questionable database management practices. Indian courts have generally accepted DNA evidence as corroborative
while emphasizing the importance of proper collection, analysis, and chain of custody protocols. This research aims to comprehensively analyze the scientific foundations, legal framework, constitutional implications, and regulatory challenges of DNA profiling in India. By examining international best practices and identifying current systemic weaknesses, this study seeks to contribute to the development of a balanced regulatory approach that maximizes the forensic potential of DNA evidence while establishing adequate safeguards for fundamental rights. DNA Profiling as Evidence in Criminal Trials: Legal Framework and Constitutional Implications This document presents Chapter 1 of a thesis examining the evidentiary value of DNA profiling in Indian criminal trials.
The work analyzes the current legal framework, constitutional considerations, and regulatory challenges surrounding DNA evidence in India. Evolution of DNA Profiling as Evidence DNA profiling has emerged as a powerful forensic tool that can identify individuals through unique genetic markers. The document traces how this technique evolved from laboratory science to courtroom evidence. DNA testing can compare crime scene samples with reference samples to determine a match, exclusion, or inconclusive result. Statistical analysis, such as Random Match Probability (RMP), helps courts interpret the significance of DNA matches. The acceptance of DNA evidence in courts has undergone several phases. Initially, courts admitted it without rigorous scrutiny.
Later, more formalized admissibility standards emerged, with the Frye test requiring general acceptance in the scientific community, and the Daubert standard (in US federal courts) requiring evidence to be both relevant and reliable. Legal Framework in India India lacks specific legislation governing DNA evidence, relying instead on provisions in the Criminal Procedure Code (BNSS) and Indian Evidence Act (IEA) that were not designed for modern forensic techniques. The BNSS grants investigating authorities power to collect biological samples:
Section 53 allows medical examination of accused persons - Section 53A mandates examination of rape accused - Section 164A covers medical examination of rape victims - Section 54 provides for examination of arrested persons - Section 293 allows scientific expert reports as evidence Under Section 45 of the IEA, expert opinions are admissible, though Indian provisions for expert testimony are less extensive than those in the US. Constitutional Concerns The document identifies two key constitutional issues regarding DNA evidence:
1. Right to Privacy: DNA collection invades three types of privacy - bodily privacy (physical
sample collection), genetic privacy (revealing health characteristics), and behavioral privacy (tracking movements). The document notes that since the right to privacy has been recognized as a fundamental right in India, routine use of DNA in criminal investigations should be approached with caution. 2. Self-Incrimination: Article 20(3) of the Indian Constitution protects against selfincrimination, raising questions about compelled DNA sampling. The document contrasts this with the US approach, where only "testimonial" evidence is protected, while physical evidence like blood samples is not. The Indian position remains unsettled, though Section 53 of BNSS permits reasonable force for medical examination of the accused. The document notes that refusal to provide DNA samples may lead to adverse inferences against the accused under Section 114(g) of the BSA.
Critique of the DNA Technology Bill, 2019 The document critically examines the DNA Technology (Use and Application) Regulation Bill, 2019, identifying several concerns:
1. The bill threatens privacy rights by enabling extensive DNA collection and storage
2. While it mentions consent for DNA collection, magistrates can easily override this consent
3. It creates a DNA Regulatory Board with excessive powers but insufficient independence
4. It allows profile storage for both criminal and civil purposes without adequate safeguards
The document argues that the bill, in its current form, threatens fundamental rights and the constitutional framework of India. Judicial Approach to DNA Evidence Indian courts have recognized DNA evidence as corroborative evidence that must be evaluated alongside other evidence. The Supreme Court has found DNA particularly useful in circumstantial evidence cases. Courts consider several factors when determining admissibility:
1. Whether DNA methods have been subjected to scientific testing
2. Whether methods have undergone peer review
3. Potential error rates
4. Adherence to standards
5. General acceptance in the scientific community
Courts have emphasized that proper quality control, sampling procedures, and chain of custody are essential for admitting DNA evidence. Problems with the Current System The document identifies several weaknesses in India's current approach to DNA evidence:
1. Absence of specific legislation for DNA collection and use
2. Lack of standardized testing procedures
3. Inadequate safeguards against rights violations
4. Overreliance on eyewitness testimony despite its limitations
5. Insufficient training for investigating officers
6. No procedural limitations on sample collection volume
1. Uniqueness:
● Definition: Every individual's DNA is unique, except for identical twins. ● Significance: This uniqueness makes DNA a powerful tool for identification. Because each person’s genetic makeup is distinct, DNA profiling can distinguish one individual from another with incredible accuracy. In criminal cases, this means that DNA found at a crime scene can be matched to a suspect with high certainty, reducing the likelihood of wrongful convictions.
2. Stability:
● Definition: DNA remains unchanged over time. ● Significance: Unlike other forms of evidence that can degrade or change over time, DNA remains stable. This stability ensures that DNA samples collected years ago can still be tested and yield reliable results. For example, DNA evidence from cold cases can be re-examined with modern techniques to identify or exonerate suspects.
3. Reliability:
● Definition: DNA profiles from different sources of the same individual will always match. ● Significance: The reliability of DNA evidence is unparalleled because the DNA profile of an individual remains consistent across different samples. This means that DNA collected from a crime scene will match the suspect's DNA profile regardless of the sample source (e.g., blood, saliva, hair). The consistency in DNA profiles leads to highly dependable forensic evidence.
4. Durability:
● Definition: DNA can be extracted from old and degraded samples. ● Significance: DNA’s durability allows it to be recovered from biological samples that are old or have been exposed to environmental elements. This means that even in cases where evidence is not fresh or has been subjected to adverse conditions (like heat, cold, moisture), DNA can still be successfully analyzed. This property is especially useful in historical investigations or cases involving long-term missing persons.
5. Heritability:
● Definition: DNA is inherited from parents, making familial comparisons possible. ● Significance: Since DNA is inherited, it allows for familial comparisons. In forensic contexts, this can be used to identify or exclude individuals based on their family members' DNA profiles. For instance, if a suspect is not available for DNA testing, samples from their parents or siblings can provide strong indicative results.
6. Versatility:
● Definition: DNA analysis can be performed on minute biological samples. ● Significance: The ability to analyze even tiny biological samples makes DNA analysis extremely versatile. Whether it’s a small drop of blood, a single hair follicle, or a trace of saliva, these small amounts can still provide enough genetic material for testing. This versatility expands the scope of forensic investigations, enabling them to work with limited or minute evidence often found at crime scenes.
METHODS OF DNA EXAMINATION:
The chapter explores various methods used for DNA analysis:
1. Restriction Fragment Length Polymorphism (RFLP): This method analyzes
variations in DNA sequences. It uses restrictive enzymes to cut DNA into fragments and examines the length and repetition patterns.
2. Polymerase Chain Reaction (PCR): PCR amplifies small DNA samples to create
large quantities for analysis. It's a rapid and inexpensive method that allows for the study of tiny DNA segments.
3. Short Tandem Repeat (STR) Analysis: STR analysis examines specific regions in
DNA that have repeating sequences. It's useful for analyzing small DNA regions and can be conducted on single cells.
4. Mitochondrial DNA (mtDNA) Analysis: This method is used when nuclear DNA is
insufficient. MtDNA is maternally inherited and remains consistent through generations, making it useful for identifying individuals through maternal lineage.
APPLICATIONS OF DNA PROFILING:
DNA profiling has a wide range of applications:
1. Criminal Cases: It helps identify perpetrators in crimes like murder, rape, and assault.
2. Unidentified Bodies: It assists in identifying victims of accidents, disasters, or crimes.
3. Paternity Testing: It resolves questions of parentage by comparing DNA profiles of
the child and putative parents.
4. Wildlife and Non-Human DNA: It identifies species in wildlife trafficking cases and
other non-human DNA investigations.
1. Chain of Custody:
Definition: The chain of custody refers to the process of documenting the collection, transfer, analysis, and storage of DNA samples to maintain their integrity. This ensures that the samples are not tampered with or contaminated during the investigation and analysis process. Significance: Ensuring an unbroken chain of custody is crucial for the reliability of DNA evidence. If the chain of custody is compromised, it can lead to questions about the authenticity and integrity of the evidence, potentially making it inadmissible in court.
Challenges: ● Collection: DNA samples must be collected meticulously using sterile tools and procedures to avoid contamination. This includes using gloves, masks, and proper labeling of samples. ● Documentation: Every individual who handles the DNA sample must document the transfer and handling, including dates, times, and purpose. This creates a traceable record from the crime scene to the laboratory and eventually to the courtroom. ● Storage and Transport: DNA samples must be stored and transported under appropriate conditions to prevent degradation. For example, blood samples need to be stored at specific temperatures to remain viable for analysis.
2. Bias:
Definition: Bias in DNA analysis refers to the influence of cognitive and confirmative biases on the interpretation of DNA evidence. Cognitive bias is the tendency to process information in a way that conforms to pre-existing beliefs or expectations, while confirmative bias is the tendency to seek and interpret evidence that confirms one's preconceptions. Significance: Avoiding bias is essential to ensure objective and accurate results in DNA analysis. Bias can lead to erroneous interpretations, potentially resulting in wrongful convictions or acquittals. Challenges: ● Cognitive Bias: Analysts might inadvertently prioritize evidence that supports their initial hypotheses, leading to skewed interpretations. This can occur when the context of the case, such as background information about the suspect, influences the analysis.
● Confirmative Bias: Analysts might selectively focus on data that confirms their preconceived notions and overlook evidence that contradicts them. This can result in biased conclusions and hinder the pursuit of impartial justice. ● Mitigation: To mitigate bias, procedures such as blind testing, where the analyst is
unaware of the case details, can be implemented. Regular training and awareness programs for forensic analysts about the dangers of cognitive and confirmative biases can also help.
3. Legal Admissibility:
Definition: Legal admissibility refers to the standards and criteria that must be met for DNA evidence to be accepted and used in a court of law. This includes ensuring the evidence is relevant, reliable, and obtained legally and ethically. Significance:
1. Reliability of Evidence: Admissibility standards ensure that only reliable DNA
evidence is presented in court, preventing the risk of wrongful convictions or acquittals based on flawed evidence.
2. Legal and Ethical Compliance: Adhering to legal and ethical guidelines in the
collection and analysis of DNA evidence is essential for upholding the justice system's integrity.
3. Expert Testimony: Legal admissibility often requires expert testimony to explain the
scientific principles behind DNA evidence and its relevance to the case. Challenges:
1. Validation of Methods: The forensic methods used for DNA analysis must be
scientifically validated and widely accepted within the forensic community to meet admissibility standards.
2. Chain of Custody: An unbroken chain of custody must be demonstrated to prove that
the DNA evidence has not been tampered with or contaminated at any point from collection to presentation in court.
3. Judicial Scrutiny: Judges must carefully scrutinize the DNA evidence and expert
testimony to ensure it meets the admissibility standards and can be presented to the jury.
3.2 LEGAL PROVISIONS IN CODE OF CRIMINAL PROCEDURE, 1973 RELATING
TO DNA EVIDENCE
In essence, BNSS is a unified Criminal procedure applicable across India. The purpose of the BNSS is to provide a robust framework to deter criminals, as shown by effective Criminal Law. An essential portion of the line between Law and Order and the norm of impulse and eccentricity is spelled out by the procedure. Integral to Criminal Law is the legislation of Criminal procedure, which lays forth procedures for the purpose of identifying Criminals, apprehending individuals guilty, and collecting Evidence to support a case.
3.2.1 Powers of Police in Collection of DNA Samples during investigation
The Police who are conducting the investigation have a number of different authorities that allow them to acquire samples of DNA from victims and suspects. The standard procedure dictates that Law Enforcement officers are responsible for gathering the evidence required for Forensic Examination and delivering it to the relevant Forensic labs. Therefore, the function of the Investigating officer begins immediately upon the commission of the Criminal offense. The Investigational Authorities are largely in charge of gathering Biological material at this point, with the Courts playing a little involvement. There is no assurance that Forensic Laboratories will review all of the physical evidence that investigating Police have gathered. An Investigating Officer keeps the DNA Evidence in his possession until he asks for its review.
The Police who are conducting the investigation are the ones who are tasked with deciding what evidence should be gathered, and in most cases, the evidence that is gathered is that which is most likely associate the person accused of committing the offense. According to Section 53 of the Cr PC, Police officers have the right to request that a Doctor examine the Accused. A Medical Professional may examine the Rape suspect under Section 51A of the BNSS. A
person who has been arrested is examined under Section 53, and a Rape victim is examined medically under Section 183.
3.2.2 Section 51, BNSS 2023 - Medical examination of accused at police request.
Section 51 deals with aspect of allowing a Medical Professional check out the accused
individual so the Police may make an informed decision about whether or not to press charges. Assuming there are reasonable reasons over comprehending such a Physical examination of the defendant would give evidence regarding the commission of the Crime, the Medical examination of the Accused is dealt with in the said section. Therefore, it will be considered permitted for an officially certified Medical Care Professional, acting at the Police officer‘s request and not in the capacity of a Sub-Inspector, as well as anybody acting in good faith in accordance with the said direction, to examine the accused as much as is reasonably required to ascertain the facts that may provide the necessary proof and to use reasonable force as required for the said purpose.
According to provisions of the Section 51 of the BNSS, the officer in charge of the investigation is granted certain power to probe possible Criminal behavior. However, the focus of this section is on how the Police investigate cases that they have initiated. The person making the accusations does not have the legal right to gather Evidence (such as Blood, Sperm, etc. ) from the person being charged under this section of the Law. When it comes to situations involving complainants, this particular aspect is completely immaterial. The permissibility of a DNA test is not made abundantly plain in this provision in any way that can be understood. It refers to the accused person being evaluated by a qualified medical practitioner.
Nothing in this provision should be interpreted as giving the officer the authority to collect body fluids (such as Sperm, Blood, Saliva, Hair roots, Urine, Vaginal swabs, etc. ) for the purpose of an inquiry.
3.2.3 Section 51-A, BNSS – Medical Examination of Person Accused of Rape Medical
examinations of alleged rapists are addressed under Section 51A of the Cr PC. Section 51 of the BNSS which was originally written in 1973, was updated according to the Code of Criminal Procedure (Amendment) Act in 2005. The aforementioned amendment brings about the addition of two new sections, namely Section 51A and Section 183A, both of which provide the official in charge of the investigation with the authority to take DNA samples from both the person being investigated and the victim of the crime with the assistance of a Qualified Medical Practitioner. In the past, there was no definitive guidelines on how to carry out a Medical examination, nor was there any agreement on whether or not it was necessary to gather evidence such as injuries,
including Blood, Sperm, Urination, the Saliva buccal swabs, Stains, Trace evidence, or DNA evidence. This is the new explanation that has been added to this section, and it specifies the scope and kind of Clinical examination that is being done at the moment quite clearly.
3.2.4 Examination of Arrested Person under Section 53
Amendment to Section 53 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) Regarding Medical Examination of Arrested Persons Section 53 of the Bhartiya Nagarik Suraksha Sanhita, 2023 The amended Section 53 now mandates that a medical examination of an arrested person must be conducted by a medical officer or certified medical practitioner as soon as possible following the arrest. Key Points:
1. Mandatory Examination: A post-arrest medical examination must be conducted
immediately by a medical officer or certified practitioner without requiring a request from the arrested individual.
2. Documentation: The medical examination must record any injuries or signs of
mistreatment, including the time frame when such signs or injuries might have occurred. This record is provided to the arrested individual or their representative.
3. Use of DNA Profiling: The amendment authorizes the use of contemporary scientific
methods, including DNA profiling, for forensic analysis of body fluids such as blood, semen, and saliva. The amendment ensures prompt medical examination, comprehensive documentation of the condition of the arrested person, and allows the use of advanced forensic techniques, enhancing the accuracy and reliability of the investigation process.
3.2.5 Medical Examination of the Victim of rape and Collection of DNA Samples
In accordance with the Bhartiya Nagarik Suraksha Sanhita, 2023, a Victim of Rape is required to have a medical examination performed by a Licensed Medical Practitioner. The examination of rape victims by a Licensed Medical Professional became a routine procedure after this
amendment. Key Points:
1. Mandatory Medical Examination: Section 183A mandates that every rape victim
must undergo a medical evaluation. The consent of the victim (or a parent/guardian if the victim is a child) is essential for the examination to be valid.
2. Authorized Examiners: The physical medical assessment can be performed by any
registered medical professional working in a state or local hospital. If a female doctor is unavailable, a male physician may conduct the examination with the victim’s consent.
3. Timely Examination: The medical assessment of the rape victim must be carried out
within twenty-four hours of the police obtaining information about the crime, ensuring prompt medical attention and evidence collection.
4. Comprehensive Documentation: The medical examination must include detailed
records of the victim's condition, injuries, and evidence collected for DNA analysis. The report must be provided to the investigating officer and forwarded to the appropriate magistrate.
5. Use of DNA Profiling: The amendment authorizes the use of modern forensic
techniques, including DNA profiling, for the analysis of body fluids and other evidence. Conclusion This research demonstrates that DNA profiling represents a powerful intersection of scientific advancement and legal principles in India's criminal justice system. The methods of DNA examination—RFLP, PCR, STR analysis, and mitochondrial DNA analysis—offer unprecedented capabilities for identifying perpetrators, victims, and establishing biological relationships. The unique properties of DNA evidence, including its stability, reliability, and durability, make it an exceptionally valuable forensic tool that can transform criminal investigations. However, the findings reveal significant gaps in India's regulatory approach to DNA evidence. The current legal framework, primarily based on amended provisions of the Bhartiya Nagarik
Suraksha Sanhita, 2023 (Sections 51, 51A, 53, and 183), provides basic authorization for collection of biological samples but lacks comprehensive guidelines for handling, processing, and interpreting DNA evidence. These provisions, while representing important steps forward, were not originally designed with modern DNA analysis in mind and therefore present limitations. The research identifies three critical challenges in the handling of DNA evidence: maintaining an unbroken chain of custody, mitigating cognitive and confirmative biases in analysis, and meeting legal admissibility standards. These challenges require robust procedural safeguards and standardized protocols to ensure that DNA evidence maintains its integrity and reliability throughout the investigative and judicial process.
The constitutional dimensions of DNA evidence collection and use—particularly concerning privacy rights and protection against self-incrimination—necessitate careful balancing of investigative needs with fundamental rights. The DNA Technology Bill represents an attempt to address these regulatory gaps, but requires further refinement to provide adequate protections.
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(PDF) THE ROLE OF DNA PROFILING EVIDENCE ON CRIMINAL JUSTICE
SYSTEM IN INDIA
▪ DNA Evidence: How It’s Done