ANALYSING DNA AS AN EVIDENCE IN CRIMINAL JUSTICE SYSTEM REGARDING CRIMINAL PROCEDURE(IDENTIFICATION) ACT, 2022

ABSTRACT

As the saying goes JUSTICE DELAYED IS JUSTICE DENIED but does that imply that only justice, regardless of whether it is just to the proper person, should be served? Prior to discussing and analysing the process, let’s clarify; what JUSTICE is? Justice is an ethical, philosophical, intellectual, rational, moral and legal idea through which fairness is administered. Ancient Greek philosopher PLATO in his work THE REPUBLIC asserts that justice is a duty and order of the components of the soul, analogous to how health is to the body. This is accurate in accordance with the law as justice is the belief on which our courts, judges and attorneys operate. Justice is the outcome for which the public believes in the judiciary and files cases in courts.As correctly stated by LYDIA MARIA that “IF THE LAW VIOLATES THE PRINCIPLES OF ETERNAL JUSTICE, IT IS NOT LAW”. Justice should be the prime responsibility without which goal and the purpose of any law or action will be defeated. Even our courts presume the accused person to be innocent unless it is proven. Since we will talk about this act connecting it with justice as this act comes with certain issues that violate the rights of prisoners.

 KEYWORDS

JUSTICE, CRIME, RIGHT TO SELF-INCRIMINATION, RIGHT TO PRIVACY, DNA AS EVIDENCE, PERSONAL DATA PROTECTION, CODE OF CRIMINAL PROCEDURE, IDENTIFICATION OF PRISONERS ACT, CRIMINAL PROCEDURE(IDENTIFICATION) ACT

INTRODUCTION

What is this crime that we hear about? Crime is defined as the act or omission as against the law, and is considered as an offence that is punishable under the law. The perpetrators of the crime are viewed as criminals and face consequences. After being convicted, all of their information is obtained and used whenever required. To govern all those activities, a specific legislation the CRIMINAL PROCEDURE(IDENTIFICATION) ACT was introduced recently in 2022 by MINISTRY OF HOME AFFAIRS by expanding the jargons of “THE IDENTIFICATION OF PRISONERS ACT”, 1920. However our obligations extend beyond conviction and we are required to protect them from arbitrary force used in the realm of law against them when they are being charged. In a democratic country every citizen has rights and they do not vanish completely due to the conviction of a person. A person whether under trial, accused or convicted has some rights granted  for their protection. In order to be held under any law, one must consider and balance the fundamental rights of the accused granted under ARTICLE III of the Indian constitution. This research paper analyzes not only the recent law but will also be covering the legal, social and moral rights of the persons which are going to be impacted by the law. 

RESEARCH METHODOLOGY

This research paper is the study of legal aspects exploring various articles discussed and different laws . It uses primary sources including some official reports of the government for reference as well as secondary sources including newspaper articles, blogs and law reviews. The study will explore the validity of the criminal procedure(identification) act, 2022 and the lacunas which need to be redressed. It mentions other laws which need to be understood and which falls under this act. Critical aspects are analysed thoroughly to point out the existing flaws and suggest some changes. This method helps in gaining the insights about the flaws besides the advantages only. Historical techniques were applied whether it was to describe earlier legislation or to make reference to other laws. In order to substantiate the claims, cases are also made in relation to fundamental rights and the necessity of replacing the previous legislation. This method helps in supporting the arguments significantly. Besides, this paper also provides some other countries’ methods regarding the forensic sciences. The central theme is to analyze the recent act when comparing it with the previous one and to know the loopholes.

REVIEW OF LITERATURE

This study has extensively used literature that is available in the books, and no. of judgements to understand the laws from all sides without any predetermined notion. For example; In the particular case of RAM BABU MISHRA VS. STATE OF UTTAR PRADESH justice Mathew has stated that the law should not be stagnant and certain reforms should be made with the times as needed. PLATO in his book has analysed the whole concept of justice and says that it is the human virtue and the bond which maintains the order in the society.

WHAT DOES THE ACT SAYS?

  • The criminal procedure (identification) act, 2022 requires to provide the measurements if not, then forcefully taking measurements in case of a person convicted, arrested or detained under any law. The bill expands the reach of information as well as the people who can take it.
  • The police as per the SECTION 53 or SECTION 53A of CODE OF CRIMINAL PROCEDURE(CrPC), 1973 can collect the data which includes finger-impressions, palm-print impressions, footprints impressions, photographs, iris and retina scan, physical and biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examinations are also included in the definition of ‘measurements’[1]. The biological samples can also be taken as in terms of bodily invasions whenever needed including using DNA to get the evidence.
  • The act also says that the police, the prison officer, a registered medical practitioner, or any other person, or his authorised person can also take the measurements.It says that a magistrate can order law enforcement officials to collect in case of both convicted and non- convicted individuals.
  • Section 3 provides the measurements which could be collected from any person convicted of any offence under any law in force, under any preventive detention law, or any person ordered to give security for maintaining peace or good behaviour under C.r.P.C. These persons can be compelled to give all measurements except biological ones which is allowed to compel when the offence is with imprisonment of 7 years or more.
  • Besides collecting, NCRB will prescribe the procedure and method to be used while taking the measurements digitally or physically. Impressions, track record of signatures and other behavioural characteristics taken at any police station will be stored in a common database by NCRB for 75 years and can be accessed by authorised police and prison officials across the country. Deletion of such records are only for the person with no convictions at any point of time that can be done only at the discretion of the magistrate.

NEED TO REPLACE THE PREVIOUS ACT;

This need for changes arose from the case of STATE OF UTTAR PRADESH VS. RAM BABU MISHRA which held that the magistrate under any specific legislation cannot direct the accused person to give signatures. Further the court suggested that suitable legislation be made on the analogy of section 5 of identification of prisoners act, to provide the magistrate with the power. From this case the supreme court has underlined the need to reform the act of 1920. [2]

  1. In 1980, the 87th report of the law commission of india[3] suggested some amendments in the earlier act as that act was enacted in the colonial era and failed to deal with much advancement in the scientific use of methods in detection of crime; it is thus necessary to make it correspond with the trend in the criminal justice system.
  2. The report also suggests giving more powers to the police officials including legal authority for taking measurements as identification is necessary in proving the conviction.
  3. It suggested that with use of forensic nowadays, the scope of measurements needs to be increased and should be allowed to be taken for the proceedings other than those mentioned in the code of criminal procedure(CrPC).
  4.  The amount of officials who can indulge in the criminal proceedings are very limited, and these limited officials too aren’t good enough to handle the technical complications of the abhorrent crimes being performed in the country. This issue demands the increment in the ambit of officials who should indulge in the criminal procedure, so that the procedure provides us with the precise measurements leading to the precise solution of criminal cases.

ISSUES RELATED TO THE BILL

  • VIOLATING RIGHT TO PRIVACY;
  • Right to privacy is a basic human right as mentioned in the ARTICLE 12, UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948 that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.[4]
  • In India, through KS PUTTASWAMY AND ANR. V. UNION OF INDIA AND ORS.[5] case the 9-judge bench conclusively established the RIGHT TO PRIVACY as a fundamental right under ARTICLE 21 and PART III of the indian constitution.
  •  Similarly, in GOVIND VS. STATE OF MADHYA PRADESH the supreme court declared certain police regulations as unconstitutional on the grounds that the regulations violated the fundamental rights to privacy. Justice Mathew has stated that “rights and freedom of citizens are set forth in the constitution in order to guarantee that the individual, his personality shall be free from official interference except where a reasonable basis for intrusion exists.”[6]

 This right of privacy has broader meaning as it extends to the PERSONAL DATA PROTECTION i.e. right of self determination regarding one’s own information.

  1. It violates collection limitation principle which requires the personal data to be taken with the consent of the person and to be used for lawful means.
  2. It violates the purpose specification principle as this principle talks about the data to be used only for the specific purpose for which it is taken but this act stores personal information for 75 years i.e. even after the acquittal of the person.[7] The same is being mentioned in the KS PUTTASWAMY judgment as the RIGHT TO BE FORGOTTEN which says that when the purpose is fulfilled the data should be erased on the demand of the accused.[8]
  3. Hence this law does not make any procedural efforts to minimize the violation of R2P and leaves it to the executive body to be used as per their convenience.
  • VIOLATING RIGHT AGAINST SELF INCRIMINATION;
  • Under the Indian constitution, right against self incrimination is based on the legal maxim “nemo teneteur podre accussare seipsum” means “no man is obliged to be a witness against himself”. Self incrimination is a declaration whether orally or documentally which incriminates oneself either explicitly or impliedly.
  • This right is wide in its scope as beyond incrimination it also provides RIGHT TO REMAIN SILENT in situations which exposes oneself. Going against it would not only violate the right given under 20(3) but also goes against the right to privacy.
  • Looking through the ambiguity the law possibly allows the use of narco-analysis test as well which is one of the cruel treatments as mentioned in the case of SELVI V. STATE OF KARNATAKA[9]. In this case the supreme court held that any responses given under narco analysis test are not intentionally and willingly given, thus disregarding the privilege to protect the person. [10]
  • Right against self incrimination is provided only against criminal proceedings but the newly introduced act takes the measurements from any person held under any law not necessarily under criminal law.
  • AMBIGUOUS PROVISIONS; 
  1. Differentiating on the basis of who can take the measurements the earlier law authorizes only police officials and authorized persons to take but the recent law increases the reach and makes it ambiguous as it authorises any skilled person to take the measurement whether any police officer or any NCRB officials.
  2. Differentiating on the basis of whose measurements can be taken the earlier colonial era law of 1920 held the conviction only on the basis of offence with rigorous punishment but the recent law widens the scope of horizon and fails to provide the distinction in terms of degree and nature of criminality as it held the conviction and arrest based on offence punishable under any law.
  3. Differentiating on the terms of which are the measurements to be taken earlier law limits itself to collection of fingerprints, foot impressions, and photographs of the convict but in the recent law the term ‘biological samples’ are not defined which means no restrictions exist and this can be used arbitrarily by persons taking measurements resulting in bodily samples related to the DNA. This can lead to access to the information of the whole family history thus violating the right to privacy of others as well. Along with that the handling body NCRB deals with the private contractors which can pose a threat to the data stored in databases.
  4. Differentiating on the terms of destruction of evidence earlier law allows destruction, if the person is not previously been convicted of an offence punishable with imprisonment for one year or more, after the acquittal of a person but the recent law allows the destruction after 75 years of collection even after the acquittal of the convicted person.
  5. Looking through the ambiguity the law possibly allows the use of narco-analysis test as well which is one of the arbitrary methods.
  6. The personal data protection bill, 2021 allows the data information if required for legal purposes but the recent bill does not define what constitutes the “legal purpose”.

DNA AS AN EVIDENCE;

DNA according to science carries the hereditary material in humans and every other organism. It has the genetic information necessary for development and functioning of organisms.

The CrPC amendment (act), 2005 authorises the investigation officer to take the DNA of the accused and victim to be used as evidence. Using DNA evidence to identify the innocent and the offenders in complex criminal cases has proven to be beneficial in numerous instances. It is currently one of the ways for use in the Indian judicial system for conducting criminal investigations. However there are some functional and legal issues with this modification regarding the fundamental rights to privacy and self incrimination. In order to employ DNA in criminal investigations, it requires highly sophisticated technology since the DNA molecule must first be separated for examination and then the selected part has to be aligned and compared  with the physical evidence. The suspect can be excluded from consideration if there is a conclusive no match, and the courts will evaluate, with the assistance of various other supplementary evidences, the likelihood that the suspect should be found guilty or innocent. Other than that, genealogical analysis of biological evidence may reveal the details about the whole family tree, invading the privacy of individuals other than convicted persons. These days instead of being used in complicated situations and towards specific offences are now being used as an easy option against any conviction. Since DNA testing was included in the legal system of various countries, they also modified their laws. So to prevent the misuse of DNA testing, proper legislation is required in India.  The recent law allows the collection of DNA samples and face matching procedures as well. The DNA technology (use and application) regulation bill, 2019regulates the use of DNA data obtained from suspected individuals. This bill will strengthen the justice delivery system by enabling DNA as an evidence to be used properly within the lawful framework. The bill stipulates that the need for consent must be obtained before taking the DNA, but the specific legislation gives power to use the force when required.

  • OTHER COUNTRIES WHO COLLECTS BIOMETRICS;
  • In the US, federal and state laws differ to some degree but the collection of information also includes taking DNA not only for convicted and arrested people but also for persons facing charges. Besides this, the fifth amendment of the U.S. constitution says that – “no person shall be forced in any criminal case, to be a witness against himself”. Although it extends to civil cases and covers both oral and documentary evidence as well.
  • Similar provisions existed in the UK as well where fingerprints, and DNA from mouth swab and head hair are taken when the person is arrested but to take the blood and dental impressions permission from a senior police official is needed. But common law also provides the right against self incrimination and states that the accused shall not be compelled for any documents or objects which incriminate himself.

SUGGESTIONS;

  • The quality of investigation should be improved as it is the foundation of an effective criminal justice system. Better investigation possibly can reduce the chances of using the biological samples.
  • Certain changes should be made in the CODE OF CRIMINAL PROCEDURE, 1973 as this act does not mention the consent and the person can be compelled to give the measurements even if the person is still not arrested. Although these changes can exclude some cases which are very serious or where the consent taken could be proved as injustice.
  •  Enactment of proper DNA regulation act through which DNA databanks are created to store the profiles safely and this databank should be outside the purview of NCRB.
  • Regulation on who can access the data should be made strict because it provides unrestricted and uncontrolled access of information to the government. The government does not even have proper infrastructure in forensic laboratories to preserve those data thus making it vulnerable to be accessed by third parties as well. Recently, the data of more than 800 millions Indians including Aadhar and passport details, has been put for sale on the dark web after an alleged leak as per the reports of RESECURITY, a US based cybersecurity solutions and research provider. So to prevent those kinds of security breaches regulation is needed.
  • Clarity in guidelines should be provided as various standards can be used across states which could not provide uniformity in working of the present law thereby defeating the purpose of administering justice.

CONCLUSION;

Considering this legislation from the perspective of sophisticated prisoner identification techniques it is a welcoming move. It is true that the purpose of this statute is to facilitate the identification of the accused, but does that come at any expense? The answer is unmistakably NO; as it is criticized on many fronts when considered through the prism of those same inmates’ rights. The government has failed to draft this legislation clearly on many aspects and is ambiguous on various terms, thus creating a loophole which can be used by the government itself as per their convenience. The demand for reforming the criminal justice system is expanding as a result of advancements in technology and investigation procedures. And an effective criminal justice system can be measured on the basis of ensuring the rights of everyone. Taking the initial action marks the start of the process. The Judiciary is responsible for verifying that the laws respect the accused’s rights and are consistent with the constitution.

  • SHAGUN RANASARIA
  • DR.B.R. AMBEDKAR NATIONAL LAW UNIVERSITY, SONIPAT

[1] The Criminal Procedure(identification) Act, 2022; https://www.indiacode.nic.in

[2] https://blog.ipleaders.in/is-taking-voice-sample-from-the-accused-without-his-consent-unconstitutional/, (December 4, 2021)

[3] Law commission, government of india, 87th report, (August 29, 1980)

[4] Venkatesh Nayak, Understanding the right to privacy, (R2P), 2012, at 8

[5] KS Puttaswamy & Anr. VS. Union of India & Ors., No 494 of 2012; (2017), 10 SCC 1; AIR 2017 SC 4161

[6] Govind VS. State of madhya pradesh; AIR 1975 SC 1378

[7] David Banisar, The right to information and privacy: balancing rights and managing conflicts, AG/Res. 2514, 2011

[8] Akshat agarwal, guest post: the state can’t (remember to) forgot you: an analysis of the criminal procedure (identification) act and rules, (July 26, 2023) accessed on ,14 november 2023, 13:12 >’ indconlawphil.wordpress.com

[9] Selvi VS. State of Karnataka, criminal appeal 1267 of 2004; 2010(7) SCC 263

[10] Vaishali Jeswani, Right to remain silent and right to self-incrimination under the indian constitution : a critical analysis, (January 28, 2021, ) accessed on <13 november 2023, 19:37>,  blog.ipleaders.in

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