DNA profiling is permissible in criminal cases
An accused cannot escape from giving his blood sample during the investigation of a criminal case, even though the Article 20(3) of the Constitution of India protects an individual from giving testimonial evidence against himself, says the Kerala High Court in Das @ Anu v. State of Kerala.
In fact, DNA profiling of accused under Code of Criminal Procedure (CrPC) does in no way contravene the constitutional privilege or protection from compulsive self-incrimination but it cannot be done in a way it violates the privacy of the individual or puts the paternity of the child in trouble.
The Indian Evidence Act 1872, under sections 45 to 51, provide for the admissibility of expert opinion as a relevant fact in courts.
Brief outline of the above case
The petitioner in the above case challenged a trial court order directing him to appear before the investigating officer to give his blood sample for the purpose of DNA examination. The accused was facing trial for raping in 1997 a minor girl, who later became pregnant. Though notice was given to the petitioner for taking blood sample, he declined his willingness but in 2018, the trial court allowed the application for drawing his DNA sample.
Article 20 (3) applies to testimonial evidence
The privilege of Article 20(3) is applicable only to testimonial evidence. The drawing DNA samples from the body of an accused in a criminal case, involving sexual offence, will neither come under testimonial evidence or nor violate his right against self-incrimination protected under Article 20(3).
The right against self-incrimination is a prohibition on the use of physical or oral compulsion to extort testimonial evidence from a person alone.
CrPC allows taking of blood for DNA profiling
The Sections 53 and 53-A of the CrPC establish the legal framework for DNA profiling in criminal investigations in India.
Section 53A CrPC refers to examination of the accused by a medical practitioner at the request of the police officer, the court also, in the appropriate case, can give a direction to the police officer to collect the blood sample of the accused and conduct DNA test.
There is no testimonial compulsion in the process of taking a sample of the blood by a qualified and registered medical practitioner. In no case it could be said that by this process, the accused is forced to tender evidence against himself nor by this process accused is being compelled to be a witness against himself, the High Court opined.
Case laws relied on
The court in this regard relied upon State of Bombay v Kathi Kalu Oghad wherein it was held the use of material samples such as fingerprints for the purpose of comparison and identification does not amount to testimonial act for the purpose of Article 20(3) of the Constitution.
Relying on the above judgment, the Apex Court in Selvi and Others v State of Karnataka (AIR 2010 SC 1974) has held that taking and retention of DNA samples which are in the nature of physical evidence, does not face constitutional hurdles in the Indian context.
However, the court added, no person who is a victim of an offence can be compelled to undergo any of the tests in question. Such a forcible administration would be an unjustified intrusion into mental privacy and could lead to further stigma for the victim.
DNA profiling has statutory base
DNA technology, as a part of forensic science and scientific discipline, not only provides guidance to the investigation but also supplies the court accrued information about the tending features of the identification of criminals.
After the amendment of CrPC, by the insertion of Section 53A in 2005, DNA profiling has become a part of the statutory scheme. Section 53A of CrPC relates to the examination of a person accused of rape by a medical practitioner. DNA profiling test is now specifically included by way of explanation to Section 53 of CrPC.
Under Section 164A of CrPC also, for medical examination of the rape victim, the description of material taken from the person of the woman for DNA profiling was essential. Therefore, Section 53A and Section 164A of the CrPC makes the DNA profiling of the accused and the victim permissible in cases of rape.
In a rape case, the prosecution must prove, by positive evidence, that the accused had sex with the victim without her consent or against her will. However, it cannot be said that the proof of paternity of the child born in the alleged sexual act has no relevance in deciding the case. Certainly, the proof of paternity of the child is a corroborative piece of evidence to establish the commission of rape.
Compelling an unwilling mother violates her privacy
However, compelling an unwilling mother to undergo a DNA test would be a violation of her personal liberty and right to privacy, says SC in Ashok Kumar v Smt. Raj Gupta. A woman can establish the paternity of a child only when the DNA of the man matches with her DNA.
In circumstances where other evidence is available to prove or dispute the relationship, the court should ordinarily refrain from ordering blood tests. This is because such tests impinge upon the right of privacy of an individual and could also have major societal repercussions, the SC added,
The Supreme Court, in Inayath Ali & Another v State of Telangana & Another, held that DNA tests can violate the right to privacy and merely because something is permissible under the law cannot be directed as a matter of course.
DNA regulation Bill 2018
The Indian Law Commission in its 271st Report in 2017 recommended introducing specific legislation to regulate DNA Profiling in India.
Based on the report of the report, the Government of India approved a draft law in 2018 for use of DNA technology in crime detection but no action was taken in this direction later. Consequently, a bill titled “DNA Technology (Use and Regulation) Bill, 2019” was tabled before the Union Parliament. But nothing much happened afterwards.
One of the most critical issues touching the Bill is the transgression into the privacy of people it can cause. Therefore, it is necessary to ensure that there is a just , fair and reasonable procedure established by law for DNA profiling, which is not available as of now.
Further reading
- Das @ Anu v State of Kerala : Crl M C 8065 of 2018/ 28 October 2022
