January 16,2019:
The Author, Teresa Dhar is a 2nd Year, BA.LLB (H) student of Chanakya National Law University. She is currently interning with LatestLaws.com.
WHAT IS DNA TESTING?
DNA (Deoxyribonucleic Acid)is the hereditary material in humans and almost all other organisms. It contains all information necessary for building and maintaining an organism. Hence, it serves the purpose of structural and functional specification.
On the other hand, DNA testing is a series of procedure in which DNA is extracted from the blood sample of a patient and is used for verification, identification and other practical applications such as Parental testing i.e, indentifying the parent/s of the child, Forensic testing i.e, identifying the suspects, criminals or victims of a crime, Gene therapy i.e, to test parents or foetuses for genetic conditions or birth defects, research on proper healthcare and dieseases or Genetic genealogy i.e, figuring out more about one's ancestry.
DNA TESTING UNDER INDIAN CRIMINAL LAW
The method of DNA profiling used today in India is based on polymerase chain reaction (PCR) and uses short tandem repeats (STR). These techniques have revolutionized the speed and efficiency of the DNA test. These techniques are very reliable and are in vogue in various countries. Dr. Lalji Singh is considered to be the “Father of DNA fingerprinting” in India, He developed and used the technology in India for the first time in 1988.
We have few legal provisions in India that mandate DNA testing for certain purposes. Such as the Section 164A of the Indian Code of Criminal Procedure which mandates collection of human material from the victim of a rape case for forensic testing. In several instances, the courts have also ordered for DNA testing to arrive at a judgement, particularly in cases of rape. Also, we have the section 53 of Code of Criminal Procedure,1973 which authorizes a police officer to get the assistance of a medical practitioner in examining the person accused of rape, in good faith for the purpose of the investigation.
But, it doesn‘t enable a complainant to collect blood, semen etc. for bringing the criminal charges against the accused. The amendment of Cr. P. C. by the Cr. P. C. (Amendment) Act, 2005 has brought two new sections which authorize the investigating officer to collect DNA sample from the body of the accused and the victim with the help of medical practitioner. These sections allow examination of person accused of rape by medical practitioner and the medical examination of the rape victim respectively.
ADMISSIBILITY OF DNA TESTING IN INDIAN COURTS
As there is no proper legislation nor any provision under Indian Evidence Act, 1872 or Code of Criminal Procedure, 1973 to guide the procedure or mechanism to conduct DNA testing, it becomes troublesome for the investigation officer to collect evidences involving modern technologies. Hence, the admissibility of the DNA evidence before the court depends on the accuracy, proper collection, preservation and documentation of the evidence to be relied upon by the court before which it has been placed. Often judges of Supreme Court and High Court have conflciting decisions regarding admissibilty of this kind of evidence on the grounds of legal or constitutional prohibition and, sometimes, the public policy, athough they don't question the accuracy and conclusiveness of this scientific test.
LATEST CASES ON ADMISSIBILTY OF DNA TESTING IN INDIAN LEGAL SYSTEM
DNA testing has been proved very beneficial in handling complicated matters regarding rape and parent identification. In the case of Anita M/O Eknath katkar vs. Add.Commisioner Kashik & ors, the Supreme Court in this case ordered the DNA and acted on the report and dismiss the petion. The child got relief and court held that the respondent is the mother of petioner.
However, time and again the quetsion of fundamental rights being infringed and certain rights like that of “Right to privacy”, “Right against Self-incrimination” are being violated through these DNA testing. However, the Supreme Court has consistently maintained that these rights come with reasonable restriction and that Right to Life and Personal Liberty, Article 21 of the Indian Constitution, and Article 20(3) which provides Right against Self- Incrimination which protects an accused person in criminal cases from providing evidences against himself or evidence which can make him guilty. is not an absolute Right.
In Govind Singh v. State of Madhya Pradesh, Supreme Court held : "Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right that fundamental right must be subject to restriction on the basis of compelling public interest."
Kharak Singh v. State of Uttar Pradesh, Supreme held that Right to Privacy is not a guaranteed right under our Constitution. The majority judgment observed thus: "The right of privacy is not a guaranteed right under our Constitution and, therefore, the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of fundamental right guaranteed under Part III."
Thus, at one point of time it was an issue before the court dealing with paternity issues whether such test could be ordered.
This issue was discussed at length in Gautam Kundu vs. Bengal,where the division bench of apex court, inter alia, held as follows:- ―
(1) That courts in India cannot order blood test as matter of course
(2) There must be a strong prima facie case in that the husband must establish non -access in order to dispel the presumption arising under section 112 of the Evidence Act ….
(3) No one can be compelled to give sample of blood for analysis.
The interesting judgment of the Delhi High Court in Shri Rohit Shekhar v. Shri Narayan Dutt Tiwari and Anr, in which the court has gone a step further. In peculiar facts of this case, the petitioner, who was born during a subsisting marriage of her mother, asked for DNA test on the respondent, claiming the latter to be his biological father. The Court has ordered DNA test on the respondent a third party to marriage, primarily recognizing, from various international covenants, the right of a child to know of his biological antecedents.
