DNA profiling, also known as genetic fingerprinting or DNA testing, has transformed forensic science and is now a critical tool in criminal investigations worldwide. In India, where criminal justice processes have traditionally depended mainly on witness testimony and circumstantial evidence, DNA profiling represents a scientific approach to crime resolution. It provides exceptional precision in detecting criminals and exonerating the innocent. The use of DNA technology has grown crucial, particularly in light of increased concerns about crime rates, erroneous convictions, and delays in justice.

By examining distinct DNA areas, DNA fingerprinting, also known as DNA profiling, allows people to be identified. The remaining 0.1% of human DNA contains distinct sequences known as Short Tandem Repeats (STRs), which are essential for forensic investigations even though 99.9% of human DNA is similar.

The genetic material known as DNA is present in the cytoplasm of prokaryotic (bacteria) cells and the nucleus of eukaryotic (plant and animal) cells. It has a double helix structure.

It is divided into 23 pairs of chromosomes, each of which has an equal amount of inheritance from each parent. The four nucleotide sequences that make up each pair's genetic code are called Adenine (A), Guanine (G), Thymine (T), and Cytosine (C).

Nevertheless, there are a number of unique difficulties associated with incorporating DNA technology into the Indian criminal justice system, such as worries about data security, privacy, and possible exploitation of genetic data. Although DNA profiling is permitted by a number of Indian laws, a thorough legal framework for its use in criminal prosecutions is still being developed. This article examines the function of DNA profiling in Indian criminal law, the difficulties associated with it, and the suggested legislative changes that might be able to resolve these difficulties.

DNA Profiling: What is it?

A forensic method called DNA profiling is used to identify people based on traits found in their DNA. Since every individual's DNA is distinct (except from identical twins), it offers an incredibly dependable means of identifying people. DNA profiling can be used to identify catastrophe victims, establish paternity, connect suspects to crime scenes, and even support or refute arguments in legal disputes.

The procedure entails taking a sample of DNA, usually from skin cells, blood, hair, or other body fluids, and examining particular DNA sections known as short tandem repeats (STRs), which differ widely between people. Next, a DNA profile is made that can be matched to relevant samples or DNA evidence gathered from a crime scene.

Indian Criminal Law's Contemporary Legal Framework Addressing DNA Profiling

The main legislative framework governing the admissibility of evidence in Indian courts, including forensic evidence like DNA profiles, is provided by the Indian Evidence Act, 1872. The opinions of experts, including those pertaining to DNA analysis, may be accepted into evidence in court under sections 45 and 46. DNA evidence is regarded as expert opinion, which, depending on the particulars of the case, a court may accept or reject.

However, the Indian Evidence Act makes no mention of DNA profiling, leaving questions regarding its use and admissibility. DNA evidence has typically been used as secondary evidence in Indian courts; the acceptance of this evidence has varied based on the quality of the DNA samples.

Code of Criminal Procedure (CrPC), 1973 Sections 53 and 53A permit the accused to be medically examined in criminal cases, and in some circumstances, this includes taking DNA samples. In situations involving sexual assault, murder, and other severe crimes when proving identification or involvement is crucial, these laws are used.

Forensic investigation, such as DNA profiling, requires the gathering of biological samples from the accused in sexual assault proceedings, as mandated by Section 53A. Although these laws make it easier to use DNA evidence, their effectiveness is nevertheless constrained by the absence of clear guidelines for the proper collection, preservation, and application of DNA evidence in criminal trials.

Precedents in Law
Over the course of time, Indian courts have accumulated a body of law on DNA profiling, notably in cases pertaining to rape, murder, and paternity issues. The Supreme Court ruled in the historic Sharda v. Dharmpal (2003) verdict that courts had the authority to order people to submit to medical examinations, including DNA testing, in situations involving paternity issues.

In a similar vein, the Court pointed out the use of DNA evidence in Banarsi Dass v. Teeku Dutta (2005) 2, even as it stressed the necessity to strike a balance between individuals' rights to privacy and biological relationships. DNA evidence has shown to be essential in obtaining convictions in criminal situations. Notable examples like the Nirbhaya gang rape and murder case 3· have seen the accused directly linked to the crime thanks to DNA evidence.

Difficulties and The Notions

Data security and privacy
The possible invasion of privacy is one of the biggest worries about the use of DNA profiling in criminal cases. Sensitive personal information found in DNA, such as hereditary predispositions to particular illnesses and ailments, have the potential to cause stigmatisation and discrimination if handled improperly. There is concern that DNA databases might be used improperly by law enforcement or other organisations for purposes unrelated to criminal investigations in the absence of strict data privacy regulations.

The Indian Constitution's Article 21 now recognises the right to privacy as a basic right, following ,After the Supreme Court's ruling in K.S. Puttaswamy v. Union of India (2017) 4, the Indian Constitution calls into question the validity of laws requiring the collecting and storage of DNA samples without sufficient protections. A balance between the necessity for efficient criminal investigations and the preservation of personal privacy, according to critics, must be struck in any legislation pertaining to DNA profiling.

Possibility of Exploitation
The possibility for DNA evidence to be misused is another issue. Inaccurate convictions or the framing of innocent people may result from improper DNA sample collection, contamination, or intentional manipulation. When DNA evidence is provided without following the correct chain-of-custody procedures, it might be challenging to guarantee the evidence's integrity.

Furthermore, concerns regarding the improper use of genetic data for surveillance or community profiling have been raised by the establishment of national DNA databases, as suggested by the DNA Technology (Use and Application) Regulation Bill, 2019⁵. Opponents contend that the state could engage in widespread surveillance and misuse of DNA data if tight regulatory frameworks and supervision procedures are not in place.

Compliance and Evaluation of DNA Evidence

Even while DNA profiling is thought to be very trustworthy, it is not perfect. False results might arise from mistakes made in the handling, gathering, or processing of DNA material. Furthermore, rather than being given as absolute certainty, DNA evidence is frequently presented as statistical probabilities, which might cause juries or judges who are not as knowledgeable about the complexities of science to misinterpret the evidence.

The appropriate gathering, preservation, and analysis of DNA evidence present significant issues in India, where there is frequently a dearth of sufficient forensic infrastructure and qualified staff. Even while DNA evidence might simply be one piece of a larger puzzle when it comes to evidence, it is frequently viewed as definitive. Courts need to use caution when evaluating DNA evidence. When evaluating DNA evidence, courts need to exercise caution and make sure that it is backed up by additional supporting evidence.

The DNA Technology (Use and Application) Regulation Bill 2019:

To address many of the issues and concerns related with the use of DNA profiling in criminal investigations, the Indian government introduced the DNA Technology (Use and Application) Regulation Bill, 2019. A legal framework for the gathering, keeping, and application of DNA samples in criminal prosecutions, civil litigation, and other situations is what the Bill aims to provide. Here are a few of its main clauses:

Establishing Regional and National DNA Databanks:

The bill suggests creating regional and national DNA data banks to hold DNA profiles gathered from crime scenes, suspects, perpetrators, and deceased individuals whose identities are unknown. Criminal investigations will benefit from the usage of these data banks, especially when they concern heinous crimes like murder, rape, and human trafficking.

Accountability over the Gathering of DNA Samples
In order to ensure that DNA samples are collected from people in a way that respects their rights and adheres to ethical standards, the Bill describes the processes for doing so. Prior to taking DNA samples, persons must give their consent, unless they are being investigated for a serious crime or a court has ordered that DNA evidence be taken.

Data Protection and Privacy Safeguards

The Bill contains clauses that safeguard the confidentiality of those whose DNA samples are being taken. It requires that DNA samples and profiles be destroyed after they are no longer needed and forbids the use of DNA data for reasons other than those outlined in the Bill. Penalties for improper use or unauthorised access to DNA data are also established by the bill.

Board for DNA Regulation

The proposed legislation calls for the establishment of a DNA Regulatory Board, which would supervise the operation of DNA data banks, guarantee adherence to moral standards, and control the application of DNA technology in India. In addition, the Board will be in charge of accrediting DNA laboratories and guaranteeing that they uphold strict quality and accuracy criteria.

Impacts to and concerns about the bill
Although the DNA Technology (Use and Application) Regulation Bill, 2019 has received positive reviews for offering a long-overdue legal framework for the application of DNA profiling, it has also come under heavy fire from a number of sources. Among the principal issues are:

Insufficient Privacy Protections
The Bill's detractors contend that it falls short of adequately safeguarding the privacy of those whose DNA data is being collected. Although the Bill calls for the destruction of DNA samples, it also permits the permanent storage of DNA profiles in certain circumstances, which may result in the establishment of an everlasting genetic database including the genetic profiles of all living people. Given that India lacks a strong data protection statute, this has sparked worries about the possibility of abuse by police enforcement.

Consent and Coercion
While the Bill permits the collecting of DNA samples from those accused of major crimes without their consent, it also requires consent for the gathering of DNA samples in civil proceedings. This gives rise to worries about the possibility of coercion, especially in situations where people can be forced to give DNA samples without fully realising their rights or the consequences of doing so.

Possibility of Discrimination
National and local DNA databases have raised worries that they may be used for profiling and targeting of particular communities, especially marginalised ones that may already be disproportionately impacted by the criminal justice system. It is feared that DNA profiling will stop being a tool for justice and instead be used for discrimination and monitoring.

Conclusion
DNA profiling has the potential to significantly improve the accuracy and fairness of criminal investigations in India. However, its use must be carefully regulated to avoid infringing on individual rights and to prevent misuse. The DNA Technology (Use and Application) Regulation Bill, 2019, represents a step in the right direction, but it must be accompanied by broader reforms, including the establishment of a comprehensive data protection framework and the strengthening of forensic infrastructure in the country.

As India continues to grapple with the complexities of integrating DNA technology into its legal system, it is essential to ensure that its use is guided by principles of justice, fairness, and respect for individual rights. Only then can DNA profiling truly become a tool for delivering justice in the Indian context.

References:

1. Sharda v. Dharmpal, (2003) 4 SCC 493.
2. Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449: This case recognized the use of DNA evidence to determine the biological relationship between individuals while balancing privacy concerns.
3. Nirbhaya Gang Rape and Murder Case, Criminal Appeal Nos. 607-608 of 2017: DNA evidence was instrumental in securing convictions in this high-profile case, demonstrating the growing role of DNA profiling in criminal law.
4. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1: The Supreme Court recognized the right to privacy as a fundamental right under Article 21 of the Constitution, raising concerns about the constitutionality of laws mandating DNA sample collection.
5. The DNA Technology (Use and Application) Regulation Bill, 2019, Bill No. 128 of 2019, Ministry of Science and Technology, Government of India: This Bill proposes a legal framework for the use of DNA profiling in criminal investigations and civil disputes, addressing privacy and regulatory concerns.