DNA Test Study: In Light Of B.P Jena’s Case

This article was written by Aashrita Sachdeva, a student of Bharati Vidyapeeth Deemed University, Pune.

Abstract: The use of DNA test in Indian criminology has increased tremendously in the last few years, it might be whenever the paternity of a child is in dispute, mostly or nowadays it is in the cases of sexual assault as well. In people of the State of New York Vs. Joseph Castro[1], the Supreme Court of New York ordered the holding of pre-trial to determine the admissibility of the new DNA[2]  scientific evidence. The Centre for Cellular& Molecular Biology at Hyderabad carried out certain experiments in DNA Technology and by this method, the paternity of a child with absolute certainty can be fixed.

Introduction:

DNA profiling which also known as DNA fingerprinting, testing or typing is an advanced and reliable forensic technique used to identify individuals by the characteristics of their DNA. DNA profiling is used in, for example, parentage testing and criminal investigation to place a person in a particular crime scene. It has helped the criminal law field to develop and the investigation of such cases to be carried out smoothly. First developed and used in 1948 its techniques have been employed globally in forensic science to facilitate the work of the police department and helps in clarifying the disputes of paternity and immigration mostly.

The usage of blood test in criminology has not decreased. Yes it is not wrong to say that DNA has overtook the platform for determining the paternity of a child or for that matter in the cases of sexual assault, but it would be wrong to say that blood tests have been totally overtook by the scientific improvement of DNA’s. Blood tests enabled to determine that to what particular group a person belongs depending upon his blood type. But in criminal cases for the help of parties or the court blood test would not help in determining the paternity or sexual assault of a person. DNA in this context has stepped up in determining accurately the paternity of a child or commission of sexual assault or rape by a particular person. DNA can be determined through a strand of hair, saliva, skin, excretion of the human body, blood etc. Medical science is able to analyse the blood of individuals into definite groups and by examining the blood of a given person and a child to determine whether the man could or could not be the father.[3]

DNA TEST LEGALITY:

In a case in Kerala a dispute regarding the paternity of a child was settled by resorting to the DNA testing. The Chief Judicial Magistrate’s Court, Tellicherry directed both the petitioner (Vilasine) and the respondent (Kunihi Raman) to undergo DNA finger-printing test to ascertain the paternity of the child.

In the results of the tests it was determined that Kunihi was the biological father of the child. Also the test obtained the result that the chances of a DNA test not being accurate was one in a three million. The test of DNA in this case was conducted by Dr. Lalji Singh at Hyderabad, Cellular & Molecular Biology (termed as CCMB).

It is not just the lower courts that have resorted to the use of DNA testing, but also the apex court of the country has had many chances to use DNA testing in many of its issues. In one of its cases it has also laid down certain guidelines regarding the legal issues of DNA testing.

In Goutam Kundu’s case/ the Supreme Court’s ruling can be stated thus :-

(i) Courts in India cannot order blood test as a matter of course;

(ii) Whenever applications are made for such prayers in order to have roving inquiry, the prayer for blood- test cannot be entertained;

(iii) There must be a strong prima-facie case in that the husband must establish non-access in order to dispel the presumption arising under See. 112 of Indian Evidence Act.[4]

Sec 112 is based on reasons of public policy. Bastardising children would harm the interests of the child and of the society. The law leans in favour of the innocent child being bastardised, If his mother and her spouse were living together during the time of conception. The outcome of the DNA Test shows that the son was born out of the wedlock of the parties, then the possibility of reunion of the parties to the marriage” is made more highly achievable. The conclusiveness of the legitimacy under Sec 112 of the Indian Evidence Act will out- weigh even the DNA Test results. The Supreme Court observed in Banarsi Dass’s case thus:- “The result of a genuine DNA Test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of See 112 of the Indian Evidence Act i.e., if a husband and wife was living together during the conception but the DNA Test revealed that the child was not born to the husband, the conclusiveness of law would remain irrebuttable”

Now there arises a question in the light of a constitutional right that is provided i.e. DNA test infringes the article 21- “no person shall be deprived of his life or personal liberty except according to procedure established by law.” It is to be understood that article 21 is not an absolute right that is provided in Indian Constitution. It is subjected to reasonable restrictions and a limited applicability in the existing procedure as mentioned in the laws of the state. Thereby, DNA testing is not an infringement of article 21 and in its context nor an infringement of the “Right to Privacy”. This has been well explained in a leading case of the apex court of India. In Sharada’s case [5],the Supreme Court ruled thus:-

• Right of privacy in terms of Art 21of the Constitution is not an absolute right;

• A matrimonial court has the power to order a person to undergo medical test;

• Passing of such an order by the Court, would not be in violation of the right to personal liberty under Art 21 of the Constitution;

• However, the Court should exercise such a power, if the applicant has a strong prima-facie case and there is sufficient material before the Court, the respondent refuses to submit himself from medical examination, the Court will be entitled to draw an adverse inference against him”.

Most importantly in the light of BP Jana’s case if we discuss DNA testing we would date back to the judgement of the same, in which it was observed by the apex court of the country that :

“In a matter where paternity of a child is in issue before the Court, the use of DNA is an extremely delicate and  sensitive aspect When there is apparent conflict between the right of privacy of person not to submit himself forcibly to medical examination and the duty of the Court to reach the truth, the Court must exercise its discretion only after balancing the , interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed whether it is possible for the Court to reach the truth without the use of such test”

In Govind Singh v. state of Madhya Pradesh[6], Supreme Court held that a fundamental right must be subject to restriction on the basis of compelling public interest. In another case Khark Singh v. state of Uttar Pradesh[7], Supreme Court held that Right to privacy is not a guaranteed right under our Constitution. It is clear from various decisions which have been delivered by the Supreme Court from time to time that the Right to Life and Personal Liberty which has been guaranteed under our Indian Constitutions not an absolute one and it can be subject to some restriction.

There are no specific provisions or laws in relation to the usage of medical science, forensic etc in the legal system of India. But there are certain provisions in the Indian Evidence Act or Cr. PC which assists or helps in the collection of DNA evidence for the investigation procedure. Section 53 of Code of Criminal Procedure1973 authorizes a police officer to get the assistance of a medical practitioner in good faith for the propose 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. But the admissibility of these evidences has remained in a state of doubt as the opinion of the Supreme Court and various High Courts in various decisions remained conflicting.  There is an argent need to re-examine these sections and lows as there is no rule present in the Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973 to manage science and technology issues.

Also it has been proved to an extent that there does not lie any infringement to Right Of Privacy of people or victims and also no infringement to “Right to Self Incrimination” article 20(3) of the Indian Constitution. But still there lies a reluctant behaviour on the part of the courts to accept the evidence based on DNA tests. Although DNA testing has probed various challenges to the constitutional rights of people there still has been a development on part of the Indian legal system.

Some provisions should be made in the existing laws to give recognition to the DNA testing and its better and effective implementation in the legal system of India.

The recent refusal of the Supreme Court to dismiss the Delhi High court’s decision ordering veteran congress leader N.D. Tiwari to undergo the DNA test is very important from the viewpoint of the admissibility of such evidence. In this case, Rohit Shekhar has claimed to be the biological son of N.D. Tiwari, but N.D. Tiwari is reluctant to undergo such test stating that it would be the violation of his Right to privacy and would cause him public humiliation. But Supreme Court rejected this point stating when the result of the test would not be revealed to anyone and it would under a sealed envelope, there is no point of getting humiliated. Supreme Court further stated that we want young man to get justice; he should not be left without any remedy. It would really be a great challenge to the courts on how they admit the evidence of cases which are based on DNA tests.

Suggestions:

Based on the above study following suggestions are suggested, which are as follows:

1) The Government must make necessary provisions / amendments in the Cr. P. C. for the accused / suspect to provide their DNA sample to the investigating agencies on the direction of competent court.

2) The Government should introduce speedy measures to create data base of DNA testing based on ethnic group, anthropological and regional considerations.

3) It is important to create a balance between the constitutional rights of an individual and the public interest and bring accountability and transparency to the practice of DNA collection and testing and therefore provisions should be made based on the same criteria.

[1] 1989, US Supreme Court

[2] DNA- Dioxy Ribo Neucleicated Test

[3] Dr. Mukund Sarda, pg 1, DNA- a study in the light of BP Dena’s case

[4] Section 112of the Indian Evidence Act states as follows:- “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”

[5] Sharda u. Dharmpal  AIR 2003 SC P.3450

[6] www.manupatra.com

[7] www.indiankanoon.org