Relevancy of DNA Tests

DNA stands for Deoxyribonucleic Acid. It is a genetic code found in every cell (not found in red blood cells) of the human body which is unique to each individual. The DNA of two persons can never be the same except in the case of identical twins.

Using DNA profiling, it is possible to identify an individual from his tissue, a drop of blood, saliva, hairs, or semen. It is a process of isolating and identifying segments of a DNA molecule from a DNA sample of a person/suspect and then comparing it with the sample collected from a crime scene. If a match occurs, it follows that the person was present on the scene of a crime or that he is the offender. The validity of DNA evidence has never been disputed. However, a problem arises regarding the admissibility and reliability of DNA evidence. DNA tests are resorted to both in civil litigation (to determine paternity) and criminal cases (rape, murder).

Position in Other Countries

England – The English legal system has been very liberal when it comes to the admissibility of DNA evidence. The Court of Appeals in England established the “Helpfulness Test” in R V. Turner[1]  which provides that if a shred of scientific evidence is helpful to the trier of facts then it is admissible. 

USA – Courts in the US have evolved three tests for determining the admissibility of DNA evidence: –

  1. Frye test-It was formulated in the case of Frye v. The US.[2]It was laid down that for admission of a DNA technique, it is to be established that the same is generally accepted in the field to which DNA belongs.
  2. The Relevance test-This test was formulated in Coppolino v. State[3] by the U.S Court of Appeals. It laid down that for admissibility of scientific evidence it must have some relevance to the issues in the case
  3.  The Daubert test– This test was formulated in Daubert v. Merell Don Pharmaceuticals, Inc[4].The U.S Supreme Court laid down a four-factor test for determining the reliability of scientific evidence:
    — Whether theory or technique can be or has been subjected to any peer review and publication
    –The known or potential error rate of a technique
    –Whether theory or technique has received ‘general acceptance’ in the scientific community[5].

The Journey of DNA as Evidence in India

  • Legislative Outlook: The law regarding the admissibility of DNA evidence is fragmented in the Indian context.
  • The scientific evidence including DNA evidence is dealt with under Section 45 of the Indian Evidence Act 1872, i.e., “Opinions of experts”
  • Also, Section 53, 53A and Section 54 of Criminal Procedure Code 1973 deal with the collection of DNA samples.
  • Section 53 deals with the examination of accused by a medical practitioner.
  • Section 53A added to CrPC. by the Amendment act of 2005 provides for examination of a person accused of rape by a medical practitioner. Clause 2(iv) of this section provides “the description of material taken from a person of accused of the DNA profiling” to be mentioned in the report prepared by the medical practitioner.
  • Section 54 deals with the examination of arrested persons by a medical practitioner.

It is pertinent to note the explanation provided to Section 53 which runs as follows:

Explanation- In this section and in section 53A and 54A  “examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and fingernail clippings by use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.

  • Section 293 of CrPC. also provides that any report prepared by a scientific expert upon any matter of things submitted to him for examination or analysis may be used as evidence in any inquiry, trial or other proceedings under the code. It also provides for the examination of such an expert.
  • The court can also direct the investigating officer to collect blood samples from accused of DNA profiling under Section 173(8) Cr.P.C. which deals with further investigation.

Challenges to Admissibility of DNA as Evidence

  • Violates right to privacy-Right to privacy is a part of our fundamental rights under Article 21 but to what extent it is allowed has to be determined on a case to case basis. It is well established that no right is an absolute right. In Govind v. State of Madhya Pradesh[6] it was held by Supreme Court that a fundamental right must be subject to a restriction on the basis of compelling public interest.

The most relevant example in this regard is the case of ND Tiwari[7].N.D Tiwari, a Congress leader denied paternity of Rohit Shekhar who was claiming to be his biological son. Tiwari denied undergoing a DNA test contending that it will amount to a violation of his right to privacy and will cause him public humiliation. The Supreme Court rejected this stating that when the result of the test would not be revealed to anyone and it would be under the sealed envelope there is no reason to be humiliated[8].

It is also maintained that DNA includes a person’s genetic information including genetic defects or whether a person is suffering from a disease like AIDS. Such personal information can be assessed by organizations-governmental or non-governmental, insurance companies which raises privacy concerns. Thus, the regulation of this process has to be ensured to rule out any possibility of its misuse.

  • Right against self-incrimination- In the case of Selvi v. State of Karnataka[9] the controversy was put to rest by Supreme Court when it declared that “Taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context.”
  • There are also ethical issues raised regarding maintainability of DNA databases, chain of custody issues, whether the DNA testing should be allowed in appeals against convictions made without DNA testing, whether a person can be convicted on basis of DNA evidence alone, the level of caution required while collecting DNA samples from a crime scene, quality assurance, credibility of the laboratory, reliability of the procedure used, etc.

DNA Evidence and Section 112 IEA 1872

Section 112 of the IEA provides:

112. Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

Section 112 thus confers legitimacy on a child born during the continuance of a valid marriage. The intention of the Legislature behind section 112 is to protect the child from the stigma of getting bastardized. It has to be noted that at the time when section 112 was enacted the DNA profiling techniques were not yet discovered. Also, section 112 talks about the presumption of legitimacy and not paternity. The presumption is a rebuttable one in case the husband is able to prove that he had no access to the wife.

The position of law remains that where Section 112 is applied and non-access is neither created nor proved, a DNA report cannot be used to rebut a presumption under Section 112.

Access and non-access: The Supreme Court in case of Goutam Kundu v. State of West Bengal [10] held that “Access” and “non-access” means the existence or non-existence of opportunities for sexual intercourse, it does not mean actual cohabitation. The court also lay down the following guidelines: –

  1. A blood test is not to be ordered as a matter of course.
  2.  No one can be compelled to give a sample for blood analysis
  3. The court should carefully examine the consequences of ordering the test, whether it will have the effect of branding a child as a bastard and mother as an unchaste woman. The Supreme Court was reluctant to order a DNA test and held “when the purpose of application is 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”.

Another important case in this regard is Nandlal Wasudeo’s Case.[11] In this case, the Supreme Court refused to go into the validity of the order stating that it has already attained finality.

The court held that:
Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available evidence and may not be left to bank upon presumptions unless science has no answer to the facts in issue”.

It was also held that in case of conflict between a conclusive proof envisaged under the law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

DNA Tests in Criminal cases

A DNA test is a clinching piece of evidence. It exonerates innocent and helps to convict the guilty[12].

The following guidelines laid down by the Court of Appeal in R v. Gary Adams[13] were applied by the High Court in Dr. Rajesh Talwar and Another vs CBI[14] :-

  1. The scientist should adduce the evidence of DNA comparison between the crime stain and the defendant’s sample together with his calculations.
  2.  Whenever DNA evidence is adduced the Crown should serve on the defence details as to how calculations were carried out which are sufficient to enable the defence to scrutinize the basis of calculation.
  3. Databases upon which calculations have been based should be made available to defence if requested.

Conclusion

The present judicial trend in our country is undoubtedly in favour of the acceptance and reliability of DNA evidence. Article 7 of Convention on the Rights of the Child 1989, to which India is also a party provides the right to knowledge of parenthood. Thus, it is required that balance is maintained between this right of a child on one hand and his welfare and the constitutional morality which protects the institution of family on the other.

In the area of criminal law, DNA technology should be used with regard to the gravity of the offense committed. Drawing adverse inference against a person who refuses to give a DNA sample is to be criticized for there is a possibility that he is doing so out of fear and embarrassment or that he does not trust the correctness of the test.

The DNA Technology (Use and Application) Regulation Bill, 2019  for establishing the identity of certain persons in respect of offences under IPC and for civil matters is still pending before the Parliament. The Bill deals with the collection of DNA, the establishment of National and Regional DNA data banks, provisions for retention and removal of DNA profile, establishment of DNA Regulatory Board and its functions and penalties for offences like disclosure of DNA information, etc. It is true that matters of law cannot be left in the hands of science. However, the law is required to take into account the technological advancements taking place in society. Hence, it is submitted that the conflict can be solved once and for all by a law enacted on the subject of DNA profiling providing appropriate standards for privacy concerns of an individual.


[1] (1975)1 Q.B. 834

[2] 54 App. D.C. 46,47, 293 F. 1013, 1014 (1923)

[3] 223 So. 2d 68(Fla. App. 1968)

[4] (1993) 192 L. Ed. 26469

[5] Journey of DNA Evidence in Legal Arena: An Insight on Its Legal Perspective Worldwide and Highlight on Admissibility in India (Review Article published in Journal of Forensic Science and Medicine in 2016.)

[6] 1975 AIR 1378, 1975 SCR (3) 946

[7] Narayan Dutt Tiwari v. Rohit Shekhar (2012) 12 SCC 554

[8] Journey of DNA Evidence in Legal Arena: An Insight on Its Legal Perspective Worldwide and Highlight on Admissibility in India (Review Article published in Journal of Forensic Science and Medicine in 2016.)

[9] AIR 2010 SC 1974

[10] AIR 1993 SC 2295

[11] Nandlal Wasudeo Badwaiak v. Lata Nandlal Badwaik AIR 2014 SC 932.

[12] Raghuvir Desai v. State 2007 Cr LJ 829

[13] (1997)1 Cr. App. R. 369

[14] All HC in 2013

Nidhi Bajaj from Guru Nanak Dev University, Punjab

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