The Ethics And Legality Of DNA Genealogy To Solve Crimes
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This Blog is written by Vartika Saxena from Symbiosis Law School, Noida. Edited by Ritika Sharma.
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INTRODUCTION
DNA evidence is playing a larger role than ever before in criminal cases throughout the country, both to convict the guilty and acquit those who are wrongly accused. Thus, increased role places greater importance on the ability of the victim’s service providers to understand the potential significance of DNA evidence in the client’s cases. In Forensics, DNA analysis continues to have a tremendous impact on the criminal justice system. The positive side of this revolution is that it offers enhanced opportunities to convict the guilty and exonerate the innocent.
Though India allows the collection of DNA samples by law enforcement agencies for identification purposes it does not have any legal provision for collection, storage, and use of DNA profiles of accused persons. A DNA profile is created when DNA samples from people are analyzed in laboratories to produce a digital representation of the sequence. The DNA profile is stored on the database with other identity-related information and information from the crime scene. Creating and using DNA profiles to solve crimes is a global practice from the past two to three decades. Both governmental and non-governmental agencies have been collecting and using DNA samples for many years without any safeguards or regulations. These function under internal policies and run DNA tests for both forensic purposes and personal purposes.
PROVISION
Over the years the Indian law enforcement agencies have permission, through evolving legislation, to collect material from the crime scenes which contain DNA samples and use it as additional evidence for the conviction of criminals in India.
The first time DNA evidence was accepted in courts was in the year 1985. Until January 2019, no bill was issued on DNA in the parliament. The Department of Biotechnology in the year 2003 proposed for drafting a bill for use of DNA samples for crime-related reasons. They established an advisory committee to make recommendations regarding the profiling bill 2006 and after four years 2003 to 2007, it became Human DNA profiling Bill, 2007. But it was never introduced in the parliament. The government created an expert committee through the Department of Biotechnology to discuss issues raised regarding the bill and to examine the 2012 draft by finalizing the text.
Later, in 2016 the bill was listed for introduction, consideration, and passing. And in 2018 the Law Commission report in its 271st report prepared the draft bill named the DNA based technology Bill, 2017. It was presented in parliament in 2019.
The DNA Technology regulation bill, 2019 was for the use and application of DNA technology to establish the identity of an individual. It will be a game-changer in criminal cases or cases which rely on forensic evidence for a speedy trial.
ARGUMENTS AGAINST THE BILL
1) The bill is in violation of human rights because it is not in consonance with the right to privacy. All personal details as sensitive as the DNA profile of an individual will be with the government.
2) The bill is unclear on whether the DNA profile used for civil matters will also be stored with the data banks.
3) It is defined in the bill that the DNA profile will be the outcome of an analysis of a DNA sample of a person for the establishment of identity. But DNA samples will reveal additional information apart from the identity of a person. It is not mentioned whether that information will be included in the DNA profile and if not, then such sensitive information should not be with the state.
4) While DNA of a person will establish the identity of a person but it will reveal other information such as his/her physical and mental characteristics which is an invasion of his/her privacy. Law Commission in its report on the draft bill of 2017 stated that only the portion required for the identification purpose will be used. However, this point is not mentioned in this bill.
Moreover, there is no provision to manage forensic science, technology, and science issues under a criminal trial.
Under Article 51A (h) and (j) of the Indian Constitution it is provided that “it shall be the duty of every citizen of India- to develop the scientific temper, humanism and the spirit of inquiry and to strive towards excellence in all sphere of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement”
Section 53 of the Criminal Procedure Code authorizes a police officer to get the assistance of a medical practitioner in good faith of the investigation purposes. Although they were not allowed to take blood sample, semen etc to press charges against the accused person. Through the amendment Act 2005 two new sections were included which authorizes the police officer to collect DNA from the body of accused and victim.
RELEVANT CASES
Govind Singh v. State of Madhya Pradesh
The introduction of DNA technology has created a serious challenge for some of the fundamental rights mentioned under the Constitution of India such as “Right to Privacy”, “Right to Self-incrimination”. This is the main reason behind courts being reluctant in accepting DNA as an evidence though it can be very useful for speedy trials. Right to privacy under Right to Life and Personal Liberty or Article 21 of the Indian Constitution is used by certain accused persons to protect themselves from providing evidence against themselves and which is valid enough to make them guilty.
In the above-mentioned case, Supreme Court stated that Fundamental rights mentioned under the Indian Constitution are not absolute rights. They are subject to reasonable restrictions if the matter is of public interest. It is clear from decisions of the Supreme Court from time to time that the Right to life and Personal Liberty is also not an absolute right. On this basis the constitutionality affecting the laws of Right to Life and Personal Liberty are upheld by the court which includes medical examination. Therefore, several courts all over the country allowed DNA technology to be used in the investigation process to produce evidence. To use modern technology more effectively we need to have a specific legislation or any provision to regulate the DNA testing mechanism.
Kamalananda v. State of Tamil Nadu
This case includes sexual harassment and murder. 13 girls in an ashram were found and one of them lodged a complaint against Swami Permananda for sexual harassment and rape. His disciple, Ravi, was murdered when he tried to reveal shameful acts of Swami Permananda. All the girls were medically examined, out of them 13 victim girls were found accustomed to sexual intercourse and one, Aruljothi, was found pregnant. She requested for the termination of her pregnancy. The court directed the doctors to conduct abortion and collect the sample of the aborted fetus and blood sample of accused. The DNA report confirmed that Swami Permanand was responsible for her pregnancy beyond reasonable doubt. Swami Permanand was convicted along with his six accomplices and was awarded double life imprisonment. Saddened by the court verdict he filed an appeal before the Supreme Court after his two appeals were already rejected by the high courts. Controversy had been created over presenting DNA as an evidence in trial court. Same concern was arisen before the High Court as well as the Supreme Court.
Dr. Lalji Singh an expert submitted the detailed examination and faced a lengthy cross-examination. He cleared that the sample was taken in sterile container and there was no possibility that it will get infected. If only the sample was contaminated then it will give rise to exclusion and not positive inclusion. He further stated that contamination never results into proper match. The court was convinced and the case was decided on the basis of eye witness and expert testimony. Here the DNA technology plays an important role to link the criminal with that of crime in an accurate manner. The courts in India appreciated as well admitted the DNA report as reliable and accurate one.
Santosh Kumar Singh v. State through CBI
This case is majorly known as Priyadarshini’s Matto case. Priyadarshini was 25 years old women who was raped and murdered by his senior Santosh Kumar Singh. This case was handled by Centre for bureau of Investigation. Post-mortem report ruled out rape but the DNA sample which were sent for analysis confirmed rape on victim. The trial court returned the findings of the prosecution stating that DNA tests were inadmissible and rejected. After considering all other circumstantial and documentary evidence produced by the prosecution, the trial court acquitted him giving him the benefit of doubt and also mentioned that CBI had failed to produce evidence and acted in an unfair manner. Primary reasons behind rejection of DNA tests by the trial court were: the chain of custody of material sent for testing showed that there was likelihood of tampering and the experts were not competent to carry out the test.
CBI filed an appeal before the High court and after analyzing all the circumstances, it was held that the prosecution proved their case beyond reasonable doubt. Santosh Kumar Singh had committed rape upon the deceased and then murdered her. High court had taken into consideration the DNA report which was rejected by the Trial court and Dr. Lalji Singh testified as witness. Santosh Kumar Singh was convicted under Sections 302 and 376 of the Indian Penal Code and was sentenced to death. DNA sample was taken from the deceased’s body and experts came to the conclusion that a sperm was present. Then it was matched with the DNA of the accused. There was no evidence which showed that tampering was done with the exhibits that were sent for testing. Aggrieved by the high court decision, the accused filed an appeal before the Supreme Court. Supreme Court after analyzing all the incidents and evidences upheld the decision of the High court and convicted Santosh Kumar Singh in Priyadarshini’s Mattoo rape and murder case. However, the punishment was reduced from death sentence to life imprisonment.
DNA plays an important role to convict the real culprit among other circumstantial evidences mentioned in the case. In such cases, if rape is confirmed through DNA technology, it becomes easier for the prosecution to prove charges against the accused beyond reasonable doubt.
SIGNIFICANCE AND ETHICAL ISSUES
In a country like India which is vulnerable to crimes on day to day basis where rape and murders are happening across the country every minute, it is very important for the government to introduce a DNA profiling bill which could improve the national security and expand the criminal surveillance which is necessary. Once there is an established law, the government is authorized to collect and store data of citizens. Law enforcement agencies like Central Bureau for Investigation are pushing government for enactment of the bill. It will solve crimes like murder, rape, homicide and many more. It can also help in speedy trial because prosecution can easily press charges against culprit beyond reasonable doubt. DNA matches will also help in exonerating the innocent people if in case there are number of suspects in crime and state who was actually present at the crime scene. Adopting this system seems essential and helpful in identification of convicts, tracking the offenders and application in case of huge migrations within and across country. It will help in enhancing the detection of crime rates.
But introduction of such bill will call for various debates or may be protests across the country because DNA profiling may be helpful in solving crimes but it is a very sensitive information which will be exposed to the state and there is no guarantee that it will not be used in an unethical manner. DNA profiling includes a set of various information and only a portion of it is required in matching and testing process. It is not clear whether the additional information which is not required will be included or not and if in case it is included then it is an invasion to privacy of an individual which is not right. Talking about the current scenario, there are no safeguards or regulations which can guarantee or protect such sensitive data from an unethical practice. The foreseen challenges were breach of privacy and confidentiality which is done mainly by biological tagging where these data are unethically utilized to track individuals who have not committed any crime or whose crime is an act of peaceful protest. DNA databases are linked to computer records for personal demographic information and track whereabouts which is human rights violation. If anyone invades National DNA Database System, the genetic information will be useful in tracking individuals and is therefore very crucial in case of terrorists or international hackers.
ANALYSIS
The debate over holding an innocent person’s DNA is key to understanding the core of what can and should be protected when formulating safeguards and regulations. Does the state have an interest in DNA besides criminal identification? If so, should the government collect the DNA only for that specific purpose. Even if the data is maintained for investigation purpose, there are various questions regarding why the It is to be kept with them. On one hand, conviction is a bright line. On the other, if there is significant evidence but not enough to convict the culprit then is the government justified in wanting to keep the information assuming that a pattern of crime starts emerging.
Another area of concern is the complete storage of DNA samples from accused, victims, suspects, volunteers and children. DNA samples taken from people contain unlimited genetic information which will not be required once the DNA profiles are created. they are further stored in criminal database for identification purposes in the investigation process. But it could also be used to track individuals on the database or identify their relatives. So stringent terms and regulations are required to prevent any misuse. The comprehensive storage of DNA sample is alarming because it contains information which is far beyond what is required for only identification purpose so it can be easily accessed and abused by law enforcement and private entities.
But we cannot deny the fact that collecting data from volunteers and victims is useful during investigation of a crime. we can think of various alternatives like destroying the DNA samples of the person which is not involved in the crime or related to it or segregate data under various heads like missing person, convicted felons and so on and it should not be permitted to share across databases.
CONCLUSION
Over the past century, the collection of citizen data has become an essential part of governance and the current system is dependent on it. Government has given reasons for the massive collection which are reasonable and in the public interest. But it should also look into the matter like the way it is handled and used by the state and agencies as it defines the state-citizen relationship. If it is not maintained it will raise questions of privacy and protection.