-Ritwik Sharma, Gurdeep Rai
Introduction
The use of advanced forensic genomics can expedite trials and has necessitated modernising existing procedural and evidentiary laws in India. Currently, classical DNA Profiling methods involving identification via fingerprinting are used in criminal investigations, and the evidence collected is admissible under the Bharatiya Sakshya Adhiniyam, 2023 (‘BSA’). However, it remains to be seen if newer methods that do not fall under the ambit of ‘DNA profiling’, such as next-generation sequencing (‘NGS’) that are employed to infer an individual’s physiological attributes or biological relations, can be used to collect admissible evidence, as they have not yet been accorded express statutory recognition. If so, the criminal law framework post the Criminal Procedure (Identification) Act, 2022 (‘the CPI Act’) must also provide adequate safeguards to prevent the misuse of such DNA information. This blog explores the admissibility of evidence procured using NGS techniques and identifies the legal challenges that may arise under the CPI Act. The piece advocates for the admissibility of DNA evidence obtained through NGS, provided that appropriate safeguards are implemented.
Admissibility of DNA Evidence Procured Using NGS Methods
The Bharatiya Nagarik Suraksha Sanhita, 2023 (‘the BNSS’) accords express statutory recognition to DNA Profiling under Sections 51, 52, and 184, all in the context of conducting medical examinations. The legal question that arises in assessing the admissibility of evidence procured using NGS is whether the term ‘examination’ under the BNSS includes the collection of DNA evidence for a scientific method other than DNA Profiling.
To assess whether the evidence procured through NGS and FDP methods is admissible, the term ‘examination’ as used in Sections 51, 52 and 53 of the BNSS and defined under the Explanation (a) of Section 51 must be analysed. It includes the examination of bodily samples by “the use of modern and scientific techniques, including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.” This provision potentially recognises all scientific methods of procuring evidence, based on the following inferences:
First, multiple modern and scientific techniques can potentially be recognised under this section, with DNA profiling only being one of them. From the word “including” before ‘DNA profiling”, it is made clear that modern and scientific techniques are not limited to DNA Profiling alone, and may automatically include newer methods involving DNA collection.
Second, the term “modern and scientific techniques” includes DNA Profiling, which has been in use since 1984, and proven technological advancements after that must necessarily amount to being more modern and scientific than DNA Profiling, and should hence be included under the ambit of this section. NGS methods should thus be admissible as they are the most modern and scientifically proven techniques used in the field today.
Third, the use of the phrase “and such other tests” allows a wide ambit of techniques to be used for the collection of samples, as long as they are found necessary by a registered medical practitioner. The word “and” must be interpreted conjunctively, and thus, other tests which may include tests involving DNA sampling, such as NGS, should be included under the ambit of ‘examinations.’ The Supreme Court’s interpretation of this phrase in Selvi & Ors v. State Of Karnataka (‘Selvi judgement’), albeit in the context of assessing the admissibility of non-physical evidence procured using scientific tests involving narcoanalysis, polygraph examination, etc, supports the inclusion of NGS under this section.
In paragraph 149 of the Selvi judgement, the Court distinguished between “testimonial acts” and “tests involving the examination of physical evidence,” and held that the phrase “and such other tests” refers only to tests involving the examination of physical evidence and not to testimonial acts such as psychiatric examinations. Applying this rationale to NGS, the rule of ejusdem generis applies to the term “and such other tests”, which would include NGS since it is a test that involves DNA examination of physical evidence, much like DNA Profiling.
Challenges to the Admissibility of NGS Methods under the CPI Act
The collection of DNA samples of accused persons for DNA Profiling under Section 52 of the BNSS has been considered necessary by the Supreme Court in Krishan Kumar Malik v. State of Haryana. However, considering that such judgements predated the CPI Act and mandated DNA sampling for the specific objective of DNA Profiling, it is unclear if DNA sampling can be done without the consent of the accused individual for a purpose other than DNA Profiling, such as NGS.
To supplement the examination of the accused or arrested person, the CPI Act provides provisions for taking ‘measurements’, including biological samples and their analysis, as specified under Section 2 (1)(b) of the Act. Since under Section 2(2) of the CPI Act, the term ‘measurement’ includes any examination under the ambit of Section 53 or 53A of the Code of Criminal Procedure, 1973,” now analogous to Sections 51 and 52 respectively, of the BNSS, the use of DNA samples to procure evidence through NGS methods instead of DNA Profiling can potentially violate an individual’s Right to Privacy. Since NGS can extract a vast amount of information even from low-quality, degraded DNA found at the site of the crime, employing NGS for criminal investigations without consent may lead to misuse and violations.
While the proviso to Section 3 of the CPI Act gives the right to refuse the collection of DNA samples as long as the offense does not carry a punishment of more than seven years of imprisonment or is against women or children, for individuals who are legally mandated to allow their measurements, the resistance to such collection is penalized under Section 6 of the Act. Since this resistance amounts to the offence of obstructing a public servant in the discharge of public functions under Section 221 of the Bharatiya Nyaya Sanhita, 2023, if the law does not specify the functions for which DNA samples can be used, they can potentially be used for purposes other than those intended.
This is especially a pressing concern given that Section 4(2) of the CPI Act mandates the retention of the record of measurements in digital form for seventy-five years from the date of collection. If coercion is employed to collect DNA samples for NGS, a far more extensive amount of genetic information would need to be revealed compared to DNA Profiling, which would then have to be stored for seventy-five years, with no possibility of challenging such a measure since Section 7 of the CPI Act puts a blanket ban on all proceedings against any person for all acts done or intended to be done in good faith under the Act.
While under Rule 5 of the Criminal Procedure (Identification) Rules, 2022, the record of measurements is to be stored in a secure and encrypted format as specified in the Standard Operating Procedures, which, under Explanation to Rule 6 refers to guidelines issued by the National Crime Records Bureau, no such guidelines related to the storage of DNA material have been framed yet. The proposed DNA Technology (Use and Application) Regulation Bill, 2019, attempts to bridge such gaps, but until it is enacted, the continuation of unregulated DNA profiling in criminal trials in India poses significant human rights and privacy concerns.
The Way Forward
In 2024, evidence based on NGS technology was accepted in a US court for the first time. While doing so may still be possible in India under the existing laws, as the Selvi judgement clarified that DNA sampling that provides physical evidence is constitutional, there is a need to strengthen the mechanisms to safeguard the consent and privacy of individuals from whom DNA samples are collected. With the expanding conception of the Right to Privacy under Article 21 post the Supreme Court’s verdict in Justice K.S. Puttaswamy (Retd) v. Union of India, the extension of this right to ensure genomic privacy is only the next step. The proposed DNA Technology (Use and Application) Regulation Bill, 2019, attempts to regulate the collection and storage of DNA samples, but until it is enacted, the coerced use of advanced DNA techniques such as NGS must be employed with caution.
Until there is legislative intervention, the Courts must uphold due process in the collection of DNA samples. For instance, in Sharda v. Dharmpal, the Supreme Court observed that in some jurisdictions, the collection of such samples may not violate the Right to Privacy when the sample is collected by a healthcare professional. The conflict between the Court’s duty to reach the truth and the Right to Privacy of an accused has been addressed in Shri Banarsi Dass v. Mrs. Teeku Dutta And Anr, where the Supreme Court held that the need for a DNA test must be ascertained at the Court’s discretion after due consideration on whether it is required for a just decision and upon balancing the parties’ interests. With NGS, these considerations must be applied with heightened scrutiny.
Hence, while Courts in India must be open to admitting evidence obtained using NGS methods, it should be permissible only once the Court is satisfied that the circumstances demand the use of such methods for reaching a just decision. In that case, NGS methods should be allowed as a court-directed procedure where the DNA sampling must not be conducted by the police but only by a registered medical practitioner after the Court has allowed it for the specific purpose of data analysis using NGS. Such a procedure must necessarily have a biotechnologist or an appropriate equivalent as an expert witness under Section 39 of the BSA, who must be cross-examined for the accuracy and reliability of the data obtained. Finally, to balance the Right to Privacy of the accused, the DNA samples can be preserved as per the requirements of the CPI Act, but the genetic data obtained using NGS methods must be destroyed and discarded transparently after the conclusion of the trial. These measures would uphold and reinforce the principles laid down in the Selvi judgment for future applications of DNA techniques.
Ritwik Sharma is a fourth-year, B.A., LL.B. (Hons.) student at Rajiv Gandhi National University of Law, Punjab, and Gurdeep Rai is a fifth-year, B.A., LL.B. student at University School of Law and Legal Studies, GGSIPU.