DNA testing & it’s relevance in Civil matters

Among the many modern methods that science has developed for the analysis of forensic evidence, analysis of deoxyribonucleic acid, or DNA is powerful and controversial. DNA is a genetic code that is found in every cell of an individual’s body and is unique to every individual except identical twins. Due to its uniqueness and developments in molecular techniques, DNA analysis has become a very useful forensic method. The field of forensics has been revolutionized by a highly sophisticated and scientific technique of DNA analysis, also known as DNA typing/profiling / fingerprinting, introduced by Sir Alec Jeffrey in 1984.[1] Laboratory studies have shown that DNA can be extracted from even the smallest stain, but obviously the larger the sample, the greater the probability of success. The key factor for effective DNA analysis is not generally the size of the stain or even the age of the stain, but the conditions in which it has been stored play a crucial role. Despite all these facts, the implementation of DNA profiling has raised some significant challenges to the legal rights of a person such as the Right to Privacy and Right against self-incrimination which is why it’s been declined as evidence by the Courts often. Considering all these facts the relevance of the DNA evidence can be critically analyzed. 

Position of India concerning DNA evidence

In India, there is no clear law on the topic of DNA evidence, but DNA testing has been legal since 1989. In India, Kunhiraman v. Manoj was the first paternity dispute which needed DNA evidence. The courts take DNA evidence as expert opinions, such as forensic experts. It is an ancient rule of common law that, on a subject requiring specific knowledge and experience, testimony is admissible from witnesses who have gained, by research or practice, the requisite expertise on the subject. Such witnesses are known as “experts.” The argument is supported by the fact that the court would not be willing, without help, to draw reasonable inferences and to form sound decisions based on the technical facts that have been proven before it,[2] The same was upheld by the supreme court in the case of the State of H.P. v. Jai Lal[3], nevertheless, we cannot deny the fact that civil law still has not laid down procedures for cases involving the DNA evidence, however parliament through the CrPC (Amendment ) Act, 2005 has incorporated section 53-A which mandates compulsory evaluation of a person accused of rape by a medical practitioner.

Apart from these provisions, section 45 of the Indian Evidence Act, 1872 is more relevant as far as the admissibility of DNA evidence is concerned. Section 45 deals with the opinion of the expert. It states:

“When the Court has to form an opinion upon a point of foreign law, or science or art, or as to identity of handwriting (or finger impressions), the opinion upon that point of persons specially skilled in such foreign law, science or art (or in question as to the identity of handwriting or finger impressions) are relevant facts”[4]

The admissibility of DNA evidence before the court often depends on its accurate and reliable collection, preservation, and recording, which can convince the court that the evidence before it is credible. Due to the lack of such a provision, the prosecuting officer has to face a great deal of difficulty in obtaining evidence. To ensure the accuracy of the DNA evidence, the government has to insert necessary provisions prescribing the exact procedure to be followed so that there will be no loss or misinterpretation of the evidence in the investigation’s course.

Read: The Shifting Imagination of Justice under the Constitution

Relevance in Civil Matters

One of the most significant scientific advances of our era is the advent of DNA technology. The full potential of using genetic markers in medicine and science is still being explored, but the usefulness of the identification of DNA in the civil justice system is already unquestionable. DNA analysis is of utmost importance in civil disputes where there is paternity issue involved in cases of divorce, maintenance, inheritance, and succession, etc. and also in cases of immigration, fraudulent sale of plant and animal products.[5] Despite all the important aspects of DNA analysis, the civil procedure code has no prescribed procedure regarding how to deal with the DNA Evidence.

The judiciary has acknowledged Unparalleled ability and the relevance of DNA testing. For instance, the Supreme court in the case of Sharda v. Dharmpal[6] held that a matrimonial court can order a person to undergo a medical test and Passing of such an order by the court would not violate the right to personal liberty under Article 21 of the Indian Constitution and also 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 the respondent refuses to submit himself to medical examination despite the court’s order, the court shall have the right to draw an adverse inference against him.

Further, in the case of Bhabani Prasad Jena v. Convener Secretary, Orissa State Commission for Women and Another[7] Supreme court of India held that –

“when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires………..such scientific advances and tools which result in an invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have a devastating effect on the child.”

The apex court also held that the courts must exercise its discretion only after balancing the interests of the parties and after due consideration of whether DNA is essential to a fair decision on the matter.

As there is no proper law governing the DNA evidence, the judiciary vests the power to order a DNA test with courts. Another compelling issue regarding DNA test is that it may violate the right to life and personal liberty which is enshrined under Article 21 of the Indian Constitution, and Article 20(3) provides for the right to self-incrimination which, prevents the accused from providing evidence against him or evidence which may make him guilty. However, the Supreme Court has held on several occasions that the right to life and personal liberty is not an absolute right.[8]

DNA evidence has a great deal of relevance in the Civil matters, according to the Journal of American Science[9] The Results of DNA paternity testing have an accuracy rate exceeding 99.9%, but these results are subjected to how carefully the labs process the information. In cases where paternity testing is needed, the DNA test is considered to be the only reliable scientific method, the judiciary and legislation must recognize the potential of DNA testing and take the necessary steps to establish DNA testing as a more relevant form of evidence. 

Conclusion

Although DNA is an exact science, its use in evidence has its concerns, which in the case of Indian scenarios, where the collection of evidence is shrouded in lack of promptness, and the conduct of medical tests remains under the question mark, nevertheless the judiciary has been trying to keep up with the scientific methods. However, it is important to note that the DNA evidence is based on the probability theory. DNA evidence can not be treated as conclusive evidence, but must also be seen in the light of other evidence to determine the guilt of the accused. This is very well illustrated in the case of Premjibhai Bachubhai Khasiya vs State of Gujarat[10] To make the technology of DNA profiling more reliable, the legislative and court have to come up with certain guidelines or legislation so that there will be lesser botched up an investigation and so are the chances of miscarriage of justice. Governments should also ensure that proper regulations are governing the Forensic laboratories to increase reliability on its report, the Laboratories should comply with high-quality standards. The relevance of any evidence depends on how well our judicial system accepts it, the enactment of proper laws can resolve the dilemma of ordering the DNA test in civil cases, but until then the courts should exercise their powers to order the DNA evidence with great diligence, as the matter concerns the fundamental rights of the person.

Frequently Asked Questions (FAQs)

  1. Are there any laws governing the procedure of DNA testing?
  2. What is the position of India regarding DNA evidence governance?
  3. Which was the first paternity dispute which needed DNA evidence?
  4. Does ordering a DNA test violate the right to life and personal liberty of a person?
  5. How accurate is DNA testing?

References

[1] Gupta R, Gupta S, Gupta M. Journey of DNA Evidence in the Legal Arena: An Insight on Its Legal Perspective Worldwide and Highlight on Admissibility in India. J Forensic Sci Med 2016

[2]The Journey From One Cell To Another: Role Of DNA Evidence By Nidhi Tandon, (2004) 8 SCC (J) 17.

[3] State Of Himachal Pradesh vs Jai Lal And Ors on 13 September 1999

[4] Singh, S. (2011). Dna Profiling And The Forensic Use Of Dna Evidence In Criminal Proceedings. Journal Of The Indian Law Institute, 53(2), 195-226.

[5] Justice through DNA Technology, Rakesh Kumar Singh

[6] Sharda vs Dharmpal, AIR 2003 SC 3450.

[7] Bhabani Prasad Jena v. Convener Secretary, Orissa State Commission for Women and Another, (2010) 8 SCC 633.

[8]Gupta, R., Gupta, S., & Gupta, M. (2016). The journey of DNA Evidence in the Legal Arena: An Insight on Its Legal Perspective Worldwide and highlight on Admissibility in India. Journal of Forensic Science and Medicine. 

[9] Ma, H., Zhu, H., Guan, F., & Cherng, S. (2006). Paternity Testing. Journal of American Science, 2(4).

[10]. Rajamanickam, R., Na’Aim, M. S., Zainudin, T. N., Rahman, Z. A., Zahir, M. Z., & Hatta, M. (2019). The Assessment of Expert Evidence on DNA in Malaysia. Academic Journal of Interdisciplinary Studies,

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