Chapter 4 MEDICAL NEGLIGENCE AND CONSUMER PROTECTION ACT For a patient, the doctor is like God. And, the God is infallible. But that is what the patient thinks. In reality, doctors are human beings. And, to err is human. Doctors may commit a mistake. Doctors may be negligent. The support staff may be careless. Two acts of negligence may give rise to a much bigger problem. It may be due to gross negligence. Anything is possible. In such a scenario, it is critical to determine who was negligent, and under what circumstances. af In a country committed to the rule of law, such matters are taken to the court and judges are supposed to decide. However, negligence by doctors is difficult to be determined by judges as they are not trained in medical science. Their decisions are based on experts’ opinion. Judges apply the basic principles of law in conjunction with the law of the land to make a decision. Reasonableness and prudence are the guiding factors. We would like to go through tkese principles in the light of some court judgments and try to understand as to what is expected from a doctor as a reasonable person. As these issues are at the core of medical profession and hospitals are directly affected by new interpretation of an existing law regarding medical professionals, it is pertinent to deal with them at the individual level of the doctor, and also at the employer's level i.e., hospital. Negligence It is very difficult to define negligence, however, the concept has been accepted in jurisprudence. The authoritative text on the subjett in India is the ‘Law of Torts’ by Ratanlal and Dhirajlal. Negligence has been discussed as: Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. ‘The definition involves three constituents of negligence: (1) a legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty;314 LAW OF FORENSIC SCIENCE (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort. Thus, the essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’ In the landmark Bolam case, it was held that: In the ordinary case which does not involve any special skill, negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. Thus, the understanding of negligence hinges on the ‘reasonable man’, Let us try to understand who this ‘reasonable man’ is ; It has been held by the courts that the test of reasonableness is that of the ‘ordinary man’ oral so called as the ‘reasonable man’, In Bolam case, it was discussed that in an ordinary case it is generally” said that you judge it by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. Why the mention of ‘Clapham omnibus’? The Bolam judgment was pronounced in 1957 and Clapham, at that time, was a nondeséript south London suburb. It represented “ordinary” London. Omnibus was used at that time for the public bus. Thus, “the man on the top of a Clapham omnibus” was a hypothetical person, who was reasonably educated and intelligent but was a non-specialist. ‘The courts used to judge the conduct of any defendant by comparing it with that of the hypothetical ordinary man. According to the English language, a professional is a person doing or practising something as a full-time occupation for payment or to make a living; and that person knows the special conventions, forms of politeness, etc. associated with a certain profession. Professional is contrasted with amateur—a person who does something for pleasure and not for payment. Negligence by professionals ‘The Supreme Court of India discussed the conduct of professionals and what may amount to negligence by professionals in Jacob Mathew’s cas In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession Which requires a particular level of learning to be called a professional of that branch, impliedly assuresMEDICAL NEGLIGENCE AND CONSUMER PROTECTION ACT 315 the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution He does not assure his client of the result...A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on.. ...Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices....A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. ‘The Bolam case very clearly distinguished between the negligence by an ordinary man and negligence by a professional in the following words: But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. Negligence by Medical Professionals In Jacob Mathew case, the Supreme Court of India has gone into details of what is the meaning of negligence by medical professionals. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows @ practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.16 LAW OF FORENSIC SCIENCE When it comes to the failure of taking precautions what has to be seen is shether those precautions were taken which the ordinary experience of men tas found to be sufficient; a failure to use special or extroordinary »recautions which might have prevented the particular happening cannot be he standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is udged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the 2quipment was not generally available at that particular time (that is, the sime of the incident) at which it is suggested it should have been used, In the Bolam ease, the court held that:... In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; ‘and if he conforms with one of those proper standards, then he is not negligent.... He is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.... A man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pigheadedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying:“I do not believe in an aesthetics. I do not believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century.” ‘That clearly would be wrong. Degree of Negligence The Delhi High Court laid down in 2005 that in civil law, there are three degrees of Negligence (lata culpa, gross neglect (ii) levis eulpa, ordinary neglect, and (iii) levissima culpa, slight neglect. Every act of negligence by the doctor shell not attract punishment. Slight neglect will surely not be punishable and ordinary neglect, as the name suggests, is also not to be punished. If we club these two, we get two categories: negligence for which the doctor shall be liable and that negligence for which the doctor shall not be liable. In most of the cases, the dividing line shall be quite clear, however, the problem is in those cases where the dividing line is thin, In all such cases we fall back.upon the test laid down in Bolam case and which has been upheld in Jacob Mathew case. Before we proceed further, let us have a look at the facts of the above mentioned two cases: Bo Bo Fri giv cou the giv the Ex wit pa ne Ja dif tw th we th: we pe th CiMEDICAL NEGLIGENCE AND CONSUMER PROTECTION ACT 319 must be shown that the accused which in the given facts and o was prescribed Amikaciri of 500 m. &. twice a day for 14 days. Much later, the patient filed a complaint at the National Consumer Dispute Redressal Commission, New Delhi and claimed compensation of Rs. 12 lakhs as his hearing had been affected. He doctor and the hospital were not negligent. Interestingly, this ver: very strongly defended the position of doctors vis-d-vis the patients. The ext has made an interesting observation: Difficulties in application of Mathew guidelines The Supreme Court observed that there were difficulties in the application of principles as laid down in Jacob Mathew’s case. For instance: 1. “The practitioner and Kenowledge, and must exercise a reasonabie degree of care Neither the very highest nor a very low degree of care ‘and competence is what the law requires.” (as per Jacob Mathew’s case) The court observed that it is a ma what is reasonable and what is unreas: certain issues. They may also disagre: what is a low level of care, 2. The Jacob Mathew case s in civil liability, but.“gross” negli liability. Now, what is simple negligence and what is gross negligence may not be so easy to be determined dividing line between the two is quite-thin. \ } 5 tter ‘of individual understanding as to ‘onable. Even experts may disagree on e on what is a high level of care and complained that the dosage of Amikacin was .320 LAW OF FORENSIC SCIENCE Judges as lay men "Thus, Martin D’ Souza's judgment held that it was very difficult or rather impossible to understand, and therefore, define as to what is “yeasonable” and what is “simple” and what is “gross”. At one place, the court observed: Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. In short, the Martin D’ Souza judgment is like a confession by the judges that in cases of medical negligence, the judges are ill-equipped to make any decision and that too on the finer aspects of “simple” or “gross” negligence. Police and Harassment of Doctors ‘An interesting order passed by the Supreme Court in this case was a warning given to police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case. Even a threat was given to the policemen that if they did not follow these orders they themselves have to face legal action. Consumer Courts ‘Another interesting order was to all the consumer forums—district, state and national—and the criminal courts, that before issuing notice to a doctor or a hospital, against whom the complaint was made, the consumer forum or the criminal court must first refer the matter to a committee of doctors and only when the,committee reports of a prima facie case of medical negligence, the notice should be issued. Critique ‘These two orders were rather surprising because this would have created hurdles in the working of the consumer courts, criminal courts as well as police. As per the law laid down in the Consumer Protection Act, there is no provision for a committee of doctors to first give a prima facie report. It is agreed that in the last 10-15 years there has been a lot of harassment of doctors and hospitals, however it does not mean that the pendulum should swing to the other end. A balance has to be achieved and this is what precisely has been done by another bench of the Supreme Court in Kishan Rao’s case in March 2010. Kishan Rao’s case Kishan Rao got his wife admitted to Nikhil Super Speciality Hospital in Hyderabad as she was suffering from fever and complaining of chill. She was not, given any treatment for malaria, Instead she was being treated for typhoid. She did not respond to the treatment. In a very precarious condition, she was shifted to Yashoda hospital where she died due to cardio respiratory arrest and malaria. Kishan Rao filed a case in the District Forum and sought compensation for the negligence of the Nikhil hospital. The hospital delayed filing the case sheet. Finally, the District Forum decided in favour of Kishan Rao. Hospital appealed in the State Commission, which overturned the ‘ jMEDICAL NEGLIGENCE AND CONSUMER PROTECTION ACT 321 decision of the District forum on the ground that there was no expert opinion to the effect that the treatment given by the hospital was wrong or the hospital was negligent. National Commission upheld this decision. Kishan Rao appealed in the Supreme Court, which observed that the case was not complicated which required expert opinion as evidence. It was a simple case of wrong treatment. The patient complained of intermitten: fover and chill and was being treated for typhoid instead of malaria, The Court held that it was not bound by the earlier decision of the same court in Martin D’ Souza's case as that judgment was per ineuriam rogarding the directions for expert opinion is concerned. The court held that it was not necessary in all cases to seek expert opinion before proceeding with the matter. For simple and obvious cases, the consumer courts were free to proceed without seeking expert opinion and the instant case fell in such = category. In Martin D’ Souza the court did not follow the distinction, as laid down in Jacob Mathew case, regarding criminal prosecution and seeking compensation under Consumer Protection Act. Thus, the guidelines, as laid down in Martin D' Souza, regarding expert opinion before proceeding with any ease do not hold good in consumer protection cases and that too which are quite obvious and straightforward. Moreover, law has been enacted to expedite the entire proce: opinion at the outset shall defeat the very purpose of the law. Hence the guidelines, as far as expert opinion before issuing notice, are concerned need not be followed. Finally, the Supreme Court allowed the appeal and ordered Nikhil hospital to pay the amount to Kishan Rao as ordered by the District Forum. the consumer protection ss and the idea of expert ‘This is a very bold judgment in which a bench-(equivalent size to the bench of Martin D' Souza’s ease—both two judges, and one judge common) held that the above mentioned observations of Martin D’ Souza’s case were per incuriam. It was held in A.R. Antulay v. R.S. Nayak, reported in (1988) 2 SCC 602 that per incuriam are those decisions, or forgetfulness of some inconsistent statutory binding on the court concerned, so that in decision or some step in the reasoning on whic count to be demonstrably wrong. The court held that it was not bound by the directions given in D’ Souza’s case and expert evidence from a committee was not required. This is really unfortunate that contradictory judgments are being pronounced by benches of equal size in the Supreme Court. Common man is unable to comprehend as to what is the interpretation of law. Which judgment should a person follow: the earlier judgment or the latter? In case he does not follow the earlier one, is he going to be punished for contempt of court and in case he follows the earlier judgment will it not be a mockery of the procedural and substantive law as laid down by the legislature. The matter should be decided by a larger bench of the Supreme Court so that there is certainty and the doctors as well as the patients are absolutely clear about the provisions of law. which are made in ignorance provision or of some authority such cases some part of. the h it is based, is found, on that322 LAW OF FORENSIC SCIENCE Minor Marghesh Case Marghesh, a minor, was admitted in Dr. Mehta’s hospital with the complaint of loose motions. He was injected glucose saline th rough his right shoulder and later through the left foot, which swelled and turned black upto the knee. He was taken to another hospital where the doctor amputated the left leg below the knee as he had developed gangrene. Marghesh, through his father, filed a complaint in the State Commission and claimed compensation for the negligence of Dr. Mehta, It was allowed. Dr. Mehta appealed in the National Commission, where it was allowed on the basis of expert opinion of another doctor that there could be ten other reasons for gangrene, Marghesh appealed in the Supreme Court, which took strong objection to the National Commission’s decision based on the solitary ground of an expert opinion and did not pay any attention to Dr. Mehta’s condnet during the proceudings. Dr. Mehta did not produce the case papers for six long years as! avery important key doctor, who was involved in the treatment, as a witness. The Supreme Court allowed the appeal with the observation that the National Commission should have been much more diligent and cautious. ‘This judgment gives in a nutshell, most of the recent cases decided by the Supreme Court. It is more to do with the way the National Commission functions and also a missive as to how the consumer courts need to exercise discretion. The facts of the case very clearly tell us that the patient was not brought in a precarious condition to Dr. Mehta’s hospital and the treatment given resulted in amputation of the left leg. There was no apparent reason for this to happen and hence, Dr. Mehta and his hospital are prima facie liable. However, the Supreme Court remanded the matter to the National Commission to be finally decided in a speedy manner. The idea of negligence can be understood only when there is clarity about the duty of the doctor, assisting staff and the hospital as a whole. In several cases, there is a problem of overlapping duties and thus, it becomes difficult to draw a line between the duty of A and B. In any case, the doctor is under an obligation and is directly liable for the acts performed by him. For the assisting staff, it is the duty of the hospital and the person himself. Both have a joint and several liability. Thus, it is advisable to have clear-cut duties laid down for-different persons. But, in practice, this is not so easy. It cannot be done perfectly. The choice is to try doing it in an imperfect manner or not doing it at all. Prudence says that there can be an endevour to put in black and white the duties of different persons working in a hospital. It provides a basic framework, which helps in deciding matters in situations of confusion and failure. A number of problems arise when a general practitioner tries to treat a patient who requires services of a specialist or a super-specialist. On the other hand, there may be problems also in situation when the general practitioner could have treated a patient, however, forms an opinion that he cannot do anything and the patient must be taken to a specialist. In such cases, time may be a crucial factor and by the time the patient is taken to a specialist, it may be too late. In both the above mentioned situations, it is toND CONSUMER ctitioner e can be no hard however, A facts. and not of a layman- doctor x circumstances. Commi is the Ayf¥ing factor A problem often seen is the experimentatio they might have been pi experien modejof some doctors. As ticing as a doctor for a very tong time, they have and on the basis of that experience they would lile to deviate from the standard set practice and procedure followed by others. There is nothing wrong per se. only problem is when it becomes an unnecessary experimentation. Risk taking just for adventure is not acceptable, Thus, if a doctor can perform a difficult surgery in candle light—because there is no electricity connection—it does not make sense that he insists performing surgery in candle light when there is power available. Thus, the level of expertise expected is that of the ‘person having ordinary skills in the art’ and the conduct expected is that of a reasonable and prudent person. Proper guidelines, methods, procedures and protocol must be laid down for things which are routine or are well-known and established by experts Such guidelines help others in treating the patients with the well-settled methods. Assumptions taken while giving such a treatment should also be documented. Also, the practicing doctor need not follow it blindly. Commonsense of an expert—trained medical practitioner—must be d. In case there is a failure to exercise commonsense, it is a case of negligence. As a layman, let us take an example. A standard procedure discusses about a treatment for certain disease prevalent in a very cold place. Now, before administering that treatment to a patient with that disease who recently travelled from a very cold place to a hot place, the doctor has to take into account that the place where the treatment currently will be given is a hot place. As common sense—of a layman—tells us, the patient cannot, of course, be expected to cover himself with blankets and drink lot of warm fluids. The common sense of an expert has to add on to the commonsense of a ayman. Thus, the guidelines provide a certain direction and guidance to achieve an end. In no case the guidelines should become an end in oxerci Law requires that ovidence and documentary evidence in the form of case papers has to be meticulously prepared. The duty of the doctor is e patient, however, it to treat s also important to document the treatment given ‘son why such treatment has been given. The matters reach a court after several months and years and by that time the only thing and at times the re:324 LAW OF FORENSIC SCIENCE doctors and other staff also adds to the evidence, however, the documentary cvidence always gets precedence, until and unless proved to be forged. It is iso important to have transparency in the system and give a copy of all the papers, reports, films, ete. to the patient. In such a case the confidence ofa patient in the hospital and its system increases. There are, however, some Boctors: and hospitals who try to keep the patient ia the dark. The oft- repeated phrase is, “do you have trust in me?” The patient is almost at the mercy of the doctor. ‘An imaportant improvement in the paper work has been in the shape of electronic records, which allow easy storage and retrieval. At the same time, several copies can easily be made. There is also minimal chance of errors creeping in as most of the items are to be selected from a drop-box. The issue of bad handwriting, very common complaint with doctors, is also easily taken care of. All new hospitals work with local network of computers and do not transfer papers from one place to another. There is also no chance of losing a paper. “Thére are two possibilities in cases of negligence—either it is negligence of the doctor or it is negligence of the staff. There may be a possibility of negligence, both of the doctor and the staff. In most of the cases, it will be a case of joint and several liability, and both the doctor and the hospital will be liable, The division of liability between the two of them will be decided according to the understanding between the two. As far as determining negligence is considered, courts have to depend on the advice of experts, except in cases of blatant violation of protocol and doing things which are considered to be unreasonable and imprudent. The level of subjectivity in such decisions is quite high and the purpose of law to be certain and specific js defeated to a large extent. Recent decisions are a good step in the direction of making this murky area a bit tidy, however, a lot needs to be done by the courts in the shape of clearer judgments so that the layman can benefit. As of now, the judgments leave a lot of room for discretion, which at times may be exercised by different persons, including doctors and judicial officers, in an undesirable manner. The law on the subject needs to be more precise and certain, That will surely givé a better understanding about the “reasonable man”. Lately, Indian society is experiencing a growing awareness regarding patient's rights. This trend is clearly discernible from the recent spurt in litigation concerning medical professional or establishment liability, claiming redressal for the suffering caused due to medical negligence, vitiated consent, and breach of confidentiality arising out of the doctor-patient relationship The patient-centered initiative of rights protection is required to be appreciated in the economic context of the rapid decline of State spending and massive private investment in the sphere of the health care system and the Indian Supreme Court's painstaking efforts to Constitutionalize a right to health as a fundamental right. As of now, the adjudicating process with regard to medical professional liability, be it in a consumer forum, or a regular civil or criminal court, considers common law principles relating toMEDICAL NEGLIGENCE AND CONSUMER PROTECTION ACT 325 negligence, vitiated consent, and breach of confidentiality. However, it is equally essential to note that the protection of patient! right shall not be at the cost of professional integrity and autonomy. There is definitely a need striking @ delicate balance. Otherwise, the consequences inexplicable for would be In the context of obtaining processes, there is a deserving need for a two-pronged approach. On one hand, the desirable direction points tovards identification of minimum reasonable standards in light of the social, economical, and cultural context that would facilitate the adjudicators to decide issues of professional liability on an objective basis. On the other hand, such identification enables the medical professionals to internalize sich standards in their day-to-day discharge of professional duties, which would hopefully prevent to a large extent the scenario of protection. of patient's rights in a litigative atmosphere. In the long run, the present adversarial placement of doctor and the patient would undergo a transformation to the advantage of the patient, doctor, and society at large. MEDICAL NEGLIGENCE AND ITS RELATION WITH COPRA? Who can file a complaint? A consumer or any recognized consumer association, consumer association registered under the Companies Act, 1956 or any other law for the time being in force, whether the consumer is a member of such association or not, or the central or state government. Who is a consumer? A consumer is a person who hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person hires or avails of the services for consideration paid or promised, or under any system of deferred payment, when such services are availed of with the approval of the first mientioned person. This definition is wide enough to include a patient who merely promises to pay. What is a complaint? A complaint is an allegation in writing made by a Complainant, ie., a consumer that he or she has suffered loss or damage as a result of any deficiency of service. What is deficiency of service? Deficiency of service means any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance that is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a persan in pursuance of a contract or otherwise in relation to any service. » ie., voluntary”326 LAW OF FORENSIC SCIENCE Where is a complaint filed? A complaint can be filed in (1) the District Forum if the value of services and compensation claimed is less than 20 lakh rupees, (2) before the State Commission, if the value of the goods or services and the compensation claimed does not exceed more than 1 crore rupees, or, (3) in the National Commission, if the value of the goods or services and the compensation excceds more than 1 crore rupees. What is the cost involved in filing a complaint? ‘There is a minimal fee for filing a complaint before the distric: redressal forums. newer Is there any provision for appeal? An appeal against the decision of the District Forum can be filed before the State Commission. An appeal will then go from the State Commission to the National Commission and from the National Commission to the Supreme Court. The time limit within which the appeal should be filed is 30 days from the date of the decision in all cases. What are the powers of the consumer redressal forums? ‘The forums have a variety of powers. They are (1) the summoning and enforcing of the attendance of any defendant or witness and examining the witness under oath, (2) the discovery and production of any document or other material object producible as evidence, (8) _ the reception of evidence on affidavits, (4) the summoning of any expert evidence or testimony, (5) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source, (6) issuing of any commission for the examination of any witness, and (7) any other matter which may be prescribed. How does adjudication of liability take place? The process before the competent forum will be set in motion in the following manner. When the Complainant files a written complaint, the forum, after admitting the complaint, sends a written notice to the opposite party asking for a written version to be submitted within 30 days. Thereafter, subsequent to proper scrutiny, the forum would ask for either filing of an affidavit or production of evidence in the form of interrogatories, expert evidence, medical literature, and judicial decisions. MEDICAL NEGLIGENCE—DEFINITIONAL ASPECTS Negligence is simply the failure to exercise due care. The threeCHAPTER 14 DNA LEGISLATION “DNA Profiling is a powerful technology for personal identification, Also known as “DNA Typing or “DNA Fingerprinting”. DNA Profiling is an authoritative technique that is capable of distinguishing every human individual from the other individual, with the EXCEPTION of identical twins or clones. This technology has revolutionized investigation in violent crimes involving biological materials, parentage disputes, identity of deceased ete. In India DNA Profiling is still at the take off stage in spite of being introduced in crime investigations a decade and half ago. One of the major hindrances in proper implementation of the technology all over India is due to the delay in amending certain sections of the Cr. P.C. and the Indian Evidence Act for its ance as evidence on par with blood grouping etc. This is also necessary for the Judiciary to set down guidelines on how trial courts should approach cases involving DNA Evidence. The Judicial Courts at present have not given guidance as to how DNA Evidence is to be evaluated. I see that confusion is still prevalent, with different judges making different rulings on whether the DNA Evidence has been properly defended or presented. Some prominent scientists of DNA Profiling claimed that lawmakers are extremely lethargic and therefore lagging far behind advanced countries. They were also adverse to the idea that cross-examination should not involve questions relating to the involvement of the DNA examiner in the case. It is unfortunate that the exponents of DNA Profiling in India have dismissed the questions relating to collection, authentication of the samples as irrelevant. It is the duty of DNA examiners in India to educate and relate DNA Profiling to Criminal Justice System without passing inconclusive remarks. Therefore, as an exponent and student of law I felt that I should share few concepts hitherto unknown to the active participants of the Criminal Justice System, which could clear doubts on DNA Profiling evidence.” Recently the Indian Evidence(Amendment) Bill, 2003 has been proposed on the recommendation of the 185% Law Commission Report. The Bill provides for the DNA tests in paternity disputes. Scientific evidence frequently plays a part in both civil and criminal trials and the scientific investigation of evidence left at the crime scene can seem more persuasive to a Court than the testimony of eyewitnesses. The Scientific and Technological proceeds in the process of identification of an individual are of paramount importance predominantly in a forensic setup. Several techniques have been developed for this purpose, simple example of which is fingerprints of an individual. One of the newest forms of forensic evidence is DNA Profilirtg, which uses material from which chromosomes are, 7 (736) Ninn er oe oe OO OP fo Reiaslahs-ilDNA LEGISLATION = made to identify individuals positively. The use. of DNA Evidence is anticipated to become a universal place in the 21 century, It is Considered to be a major breakthrough in forensic science in this century . it hes bean subjected to the most comprehensive, scientific examinations as no of} of forensic science has currently established itself as one of the best with mounting applications. It is now a well recognized technique, which is not only used in numerous areas of research in modern molecular biology and genetics but also finding prospective applications in our day to day life DNA Profiling is based on the principle that the genetic makeup in an individual is different from the others but is unique and idiosyncratic to an individual, DNA Profiling is the only definite, positive and permanent identification method of a person as one’s DNA never changes during one’s lifetime DNA testing takes advantage of the fact that, with the exception of identical tering) the genetic material--DNA—of each person is unique. DNA evidence. like fingerprint evidence, offers prosecutors important tools for the identification and apprehension of some of the most violent perpetrators. At the same time, DNA aids the search for the truth by exonerating the innocent DNA fingerprints are useful in several applications of huzhan health care research: as well as justice system. They are used to diagnose inherited disorders in both prenatal and new born babies in hospitals around the World. Research programs.to establish inherited disorders on the chromosomes depend on the information contained in DNA fingerprints. They are also used: to link suspects to biological evidence. Another use of DNA Profiling in the court system is to establish paternity in custody and child supporting litigation, Advances in technology are leading to novel uses of DNA Profiling almost every day. DNA. Deoxyribonucleic Acid or DNA is the fundamental building }), individual’s entire genetic makeup. It is a component of ly every cell in human body. It has the power to make definite distinction between two persons, barring identical twins. A person’s DNA is same in every call. DNA is basically a chain of small repeated sub-units found ca chain « iS found in the nuelei human odie oguape vad Wes alld ss well as te Sah alls Beatie pe ‘as mitochondria. ae ‘The general structure of section of DNA is as shown Deoxyribonucleic acid (DNA) is a nucleic acid that contains the genetic instructions for the biological development of a cellular form of life or a virus. All known cellular life ‘and some viruses have DNAs. DNA is a long polymer of nucleotides (a polynucleotide) that encodes the sequence of amino acid residues in proteins using the genetic code. p INHERITENCE OF DNA DNA is responsible for the genetic propagation of most inheritedtraits, In humans, these traits range from hair color to disease susceptibility. The genetic information encoded by an organism's DNA is called its genome During cell division, DNA is replicated, and, ‘during reproduction ig her twig ck of an Tuctures Inown ~738 LAW OF FORENSIC SCIENCE transmitted to offspring. ~ Ta eukaryotic cells, such as those of plants, animals, fungi and protists, most of the DNA is located in the cell nucleus, and each DNA molecule is usually packed into a chromosome that are passed to daughter cells during cell division. By contrast, in simpler cells called prokaryotes, including the eubacteria and archaec, DNA is found directly in the cytoplasm (not separated by a nuclear envelope) and is circular. The cellular organelles known as chloroplasts and mitochondria also carry DNA. DNA is thought to have originated approximately 3.5 to 4.6 billion years ago. In humans, the mother's mitochondrial DNA together with 23 chromosomes from each parent combine to form the genome of a zygote, the fertilized egg. As a result, with certain exceptions such as red blood cells, most human cells contain 23 pairs of chromosomes, together with mitochondrial DNA inherited from the mother. Lineage studies can be done because mitochondrial DNA only comes from the mother, and the Y¥ chromosome only comes from the father. Although sometimes called "the molecule of heredity", DNA macromolecules as people typically think of them are not single molecules. Rather, they are pairs of molecules, which entwine like vines, in the shape of a double helix. , DNA consists of a pair of molecules, organized as strands running start- to-énd and joined by hydrogen bonds along their lengths. Each strand is a chain of chemical "building blocks", called nucleotides, of which there are four types: adenine (abbreviated A), cytosine (C), guanine (G) and thymine (1), (Thymine should not be confused with thiamine, which is vitamin Bi,) The DNA of some organisms, most notably of the PBS 1 phage, have Uracil (U) instead of T. Each strand of DNA is a covalently linked chain of nucleotides, with alternating sugar (deoxyribose)-phosphates forming the "backbone" for the nucleobases ("bases"). The negatively-charged phosphate groups between each deoxyribose make DNA an acid in solution and allow DNA molecules of different sizes to be separated by electrophoresis. Because DNA strands are composed of these nucleotide subunits, they are polymers. DNA SEQUENCE : DNA contains the genetic information, that is inherited by the offspring of an organism. This information is determined by the sequence of base pairs along its length. A strand of DNA contains genes, areas that regulate genes, and areas that either have no function, or a function yet unknown. Genes are the units of heredity and can be loosely viewed as the organism's "cookbook" or "blueprint". DNA is often referred to as the molecule of heredity, The technique of DNA Profiling has been acknowledged as the greatest breakthrough in forensic science because of the sheer magnitude of its-impact, on science and law. In United States, it is estimated that nearly 33% of suspects are exonerated and not brought to trial in spite of compellingDNA LEGISLATION 739 evidence because of the supposedly decisive nature of DNA evidence.! The power of DNA technology is claimed to be tremendous and as awareness about it spreads, detection and identification of persons could increase greatly. The tension between law and science has been palpable for years with scientists believing that scientific evidence is abused in the courtroom and with Judges displaying little patience with scientific probabilities.2 Judicial discomfort in handling such evidence has increased because with the emergence of expert testimony, thé availability and malleability of experts has earned them the notorious tag of “hired guns” Further there is a problem of admissibility standards lenient standards may invite into the courtroom what is popularly called “junk science” but strict standards may exclude scientific evidence to a great © It is th relationship between law and science that is sought to be demonstrated by analyzing the place and purpose of DNA technology in the courtroom, Whether a conviction can be based on DNA evidence alone, i.e the probative value of DNA evidence is another concern. The extent of which DNA evidence gains recognition in the courtroom will depend on the acceptance it receives in the legal and scientific realms. Although this technique gained acceptance in countries such as the United States, it remains to be seen whether Indian courts are receptive to it and how they attempt to deal with its use in various cases, keeping in mind that it enjoys limited recognition in the Indian Evidence Act. WHAT IS DNA PROFILING? ; The process of testing to identify DNA patterns or types, In the forensic a setting, this testing is Sed to indicate parentage or to individuals as possible sources of body fluid s other biological evidence (bones, teeth, hair). ~~ Genetic fingerprinting, DNA testing and DNA profiling are techniques lude or include tains (blood, saliva, semen) and 1. “Human Genities: Some Indian Issues”, Speech delivered by Dr. H. Sharat Chandra, Department of Mictobiclogy and Cell Biology of Indian Instittite'‘of Science, Bangalore. 2. Also scientific evidence is being used in an adversial setup which may not be the best method for investigating the truth. Further, Judges are often bound by precedents or limited rules of evidence which make their judgments seem like distortations of rational science. For example, in silicon breast implant cases, jurists have awarded large amount of money to the plaintiffs inspite of there being lack of scientific data supporting a finding of harm based on the levels of exposure. John H. Ferguson,” Interpreting Scientific Evidence: Comparing the National Institutes of Health Consensus Development Programme and Courts of Law” 86 (3) The Judges Journal, 1997 at 21. ' 3. Joseph T. Walsh, “ The Evolving Standards of Admissibility of Scientific Evidence” 36(3) The Judges Journal, 1997 at 33the form of a "bi 740 LAW OF FORENSIC SCIENCE a used (o distinguish between individuals of the same species using only samples of their DNA. Its invention by Sir Alec Jeffreys at the University of Leicester was announced in 1985. z 5 DNA profiling is perhaps one of the most reliable and conclusive methods of personal identification available to today's scientists. The aim of DNA analysis is to comparatively analyze genetic information found in human biological material. The discovery that DNA structure is as unique to an individual as a fingerprint has been an invaluable one to the field of | forensic science and has enabled individualization by the analysis of a whole i array of biological materials. { Deoxyribonucleic acid, or DNA, provides the vital information for genetic inheritance by forming an immense sequence of codes made up from four very simple base units. These four base units, known as nucleotides, string together to form a DNA strand millions of bases long. Within the four nucleotides there are two complementary base pairs that will only align with each other. Thus, the-nucleotides comprising the single DNA strand each bind with their complementary base to form a double stranded structure. DNA profiling is a process which begins when a minute sample of genetic material—DNA (deoxyribonucleic acid)—is taken from human sue and ends when the sample is given a computerized numeric value in ‘Compa ‘a person's DNA profile with a DNA sample retrieved from the scene of a crime can eliminate innocent people, but can also provide a strong indication of guilt. ea I = HOW DNA PROFILING IS DONE? Of the 3.3 billion base pairs that make up the human blueprint, approximately 3 million differ between any two individuals.¢ It is this difference that DNA testing relies on to distinguish one individual from another. DNA is found in almost every cell of human being, therefore traces of blood, hair, semen ete at crime scenes are all sources of DNA. In DNA Profiling process firstly, the DNA is isolated fro1 cells or tissues of the body in which the amounts of DNA found at the root e hair "sufficient. After chemically extracting the intact DNA from the sample restriction enzymes are used to gut DNA“at speci ‘The DNA pieces are then stored out according to Size “b technique called electromorphos is in an aga rose gel. The DNA fragments are blotted from the gel into a nylon membrane. This process is known as Southern Blotting. The DNA is then transferred to a membrane; pockets may intéfferé with the transfer and: obscure the results. The membrane containing the DNA is then immersed in a liquid containing radioactive DNA “probes"s Radioactive DNA “probes bind to their structural Gmiplements and the radioactive marker of 4. Wilson Wall Genetics and DNA Technology (London Cavendish Publishing Ltd, 2002) at 24-25. - 5. There are DNA pieces that’ mirror images to comparably sized segments of the human forensic scienceDNA LEGISLATION 741 the probe makes the probe bound fragment “light up” allowing easy identification of its position. ® After Z away excess probe, the membrane is placed against X-ray film and on processing, black b: ds appear where probes had bound themselves to the fragment; this image is walled “an autoradiograph. Duration of exposure of the film ‘can have a significant effect on the X-ray pattern. The suspect’s autoradiograph is rati su compared to the one ereated by the reference saiple obtained from the v or the crime scene If the profiles match, the significance of the match must be assessed through a match probability and not in terms of straight forward “yes” or “no”. answer.” A case which raised doubts about the calculati was R v. Deen where the prosecution argued that, there were ten matching bands whereas the defence argued that there were eight. Therefore, because considerable human judgement is involved, the process is highly subjective.§ If a match is declared however, the probability of the matching DNA pattern originating from someone else has to be determined by comparison of the suspect's. DNA pattern with a DNA population database to determine the probability of the suspect’s DNA fingerprint randomly matching another. ‘The use of DNA in court is based on the ratio between the probability of the evidence if the suspect and the evidentiary sample are identical to the probability that they are different; this is called likelihood ratio.® However critics claim that such interpretations are frequently correct and prejudicial. Because genetic traits have ethnic distributions, the correct approach would be to compare the suspect's sample to that of the appropriate population. Thus the match probability declared by a laboratory may be prejudicial to the suspect because neglect of genetic differences lessens the likelihood of a random match.10 Where the samples are inadequate and the quality is poor, the technique has been found to be less satisfactory, Therefore, a new technology was developed to replicate the inadequate sample, by synthesizing new DNA 6. Genetic differences among individuals that are revealed by these probes are referred to as Restriction Fragment Length Polymorphism or RFLPs. The DNA sequence to which the probes are directed are called variable number of Tandem Reapets or VNTRs. . 7, Further, band shift often results in bands in one profile being placed at a higher level than in the other. A second problem is that though one profile may match the other at several loci, there may be discrepancies in number of bands between the two profiles. 8. id ( Mike Redmayne) 9. A likelihood ratio is greater than 100 is a strong indication of positive identification while a ratio less than 1/100 indicated exclusion. 10, But even within such a population, there is diversity which may lead to neglect of genetic differences between subgroups. Potential probabilities seen as 1 in 738 trillion caused enthusiasts to proclaim that a given individual could be identified from the rest of the world’s population, but critics argue that this could be misleading.742 LAW OF FORENSIC SCIENCE from existing one to obtain sufficient quantities for analysis. This technique is called Polymerase Chain Reaction(PCR) and the testing PCR is known as PCR-STR (Short Tandem Repeat). It can produce quick, valuable results with degraded specimens In India this technique is in its infancy. Centre for DNA Fingerprinting and Diagnostics (CDFD), Andhra Pradesh Forensic Science Laboratory (APFSL), Centre for Cellular and Molecular Biology (CCMB), Rajiv Gandhi Centre for Biotechnology(RGCB) are major institutes where DNA fingerprinting is done. DNA fingerprinting is useful for identification of persons in cases of rape, exchange of babies, paternity disputes, immigration” assassination, bombings, ? infanticide ete. DNA can be used not only to determine culprits but also to identify victims. DNA testing is equally useful in eliminating suspects. It is also used in distinguishing copycat crimes, crimes from serial crimes; samples from multiple crime scenes can be tested to determine whether more than‘one person is involved. SOME FREQUENTLY ASKED QUESTIONS ABOUT DNA PROFILING boat are the benefits of DNA profiling?- The experience acquired by countries already using DNA profiling in their crime investigations shows that there are several important advantages to be gained: + rapid and absolute elimination of innocent suspects; © Tapid identification of offenders with a very high degree of certainty; «reliability of evidence produced in court; « better administration of justice; increased public confidence in the criminal justice system; ‘a deterrent effect on offenders with a concomitant decrease in crime; + cost-effectiveness in terms of investigation time saved. 11. In 1983 there was a case regarding the son of a Ghanaian woman, while was in legal resident of United Kingdom, the boy was refused permission to immigrate to the U.K. DNA testing established that there was only one in 6 billion probability that the boy was not the woman’s son. As the world’s population was only 4 billion, authorities conceded and eventually allowed the boy to immigrate. 12, After 1995, bombing of the Federal building in Oklahoma, a leg was found in the rubble and DNA testing established that it belonged to African American woman. This information was then used to make a positive identification. Dr. Eric S. Lander, “Winding Your Way Through DNA’, hitp://esg- www mit.edu:800Vesgbio/rdnaflanderfinger html VISITED ON 12/10/06 http//www.met.police.ul/history fingerprints.html visited on 12/10/06DNA LEGISLATION 743 2, What are the principles of DNA profiling?- The principle on which DNA profiling is based is relatively straightforward: @ series of molecular biology techniques is used to determine the sizes of discrete DNA fragments that contain hyper variable target sequences. Because molecular biology is a new discipline with technical possibilities that are still expanding, it is hardly surprising that a variety of ‘standard’ techniques are used at each step in DNA profiling. The analysis principles, however, remain constant. They include: « collecting samples from the scene of a crime and from victims and suspects; « extracting and purifying DNA from all the samples; * cutting the DNA into fragments (with a ‘restriction enzyme’); visualizing the fragments; analyzing the resulting bank patterns by computer. DNA profiling is a complicated process. As already mentioned, each sequential step involved in generating a DNA profile can be carried out in a variety of ways. Although they are all straightforward, and factors affecting them have been documented, each step is performed differently in different laboratories. Much of this variation is of little account, but in the present unregulated climate there remains a very real potential for generating a varicty of anomalies. _3, Are there any probable defense challenges to DNA profiling?- ‘Yes, the investigating officers and prosecutors using DNA profiling should be aware of several areas where the defense could challenge evidence successfully. The main points that could be raised are: ; + possible contamination of samples which could lead to a different int rpretation of results or their invalidation; comparison with an inadequate population sample size as_the basis for the probability calculations; improper sample handling or the unreliability of laboratory procedures. 4. Are there any efforts -towards the standardization and jnternationalization of DNA profiling world-wide? Yes, it is essential that standards be established and rules on accreditation and auditing applied at both national and international levels. Only if there is one will there be a possibility to exchange data internationally, Europe scems to be a very active region from this point of view. The European DNA Profiling Group (EDNAP) was set up in 1988 and it has made considerable progress. The aim of this informal group is to facilitate the exchange of compatible DNA profiling data in order to allow European countries to make the best possible use of the opportunities provided by this technique. The European co-operation in this topic was reinforced and formalized by the involvement of the European Union (EU). Within this framework, there is a Working group on Police Co-operation, which deals also imc744 LAW OF FORENSIC SCIENCE with DNA related topics. The society of forensic scientists is represented by the European Network of Forensic Science Institutes (ENFSI) Working Group on DNA Profiling. 5. Is INTERPOL also involved in these activities?- ‘Yes, of course. The 25th Regional Conference (Warsaw, 29-31 May 1996) endorsed the revised European Business Plan, in which promoting good practice in the use of DNA profiling as an investigative technique is one of the main priorities. In order to implement this task, the INTERPOL European Committee decided at its 15th Meeting on 5 November. 1996 to set up the INTERPOL European Working Party on DNA profiling. ‘The Final Report of the Interpol European Working Party on DNA profiling (new name now: DNA MEG) has been discussed by the 67th General ‘Assembly Session in Cairo. The working group was advised to profit from the experience of other countries in the field of DNA use in criminal investigations in order to get a global harmonization. In this respect it was agreed to invite representatives from all continents to join the DNA MEG. 6. What is the INTERPOL DNA profile Monitoring Expert (DNA MEG) about and what are its tasks?- The INTERPOL DNA MEG discusses the use of DNA profiling as an investigative technique and will make recommendations concerning the use of DNA in criminal investigations with a view to facilitating the worldwide use of this technique. The objective of the group is to act as an international point of reference facilitating the utilization future development of DNA techniques. The recommendations will address following areas: Investigation of crimes and incidents Establishing protocols for the application of DNA Data basing Facilitate training Other tasks are Providing assistance and support to developing countries acting as a catalyst for the expansion of DNA applications Widening co-operation with law enforcement agencies, international leading societies and institutions dealing with or working on DNA profiling Getting a global overview about the trends in the sphere of NA profiling Organization of DNA related conferences and working ‘meetings. Following Interpol member states are represented in the DNA MEG: Argentina, Australia, Austria, Belgium, France, Norway, South Africa, Spaid, United Kingdom and the USA. The DNA MEG takes into consideration the work already done in this field by other for a dealing with or working on DNA profiling. The current members representing following international or national working groups before the DNA MEG: EVIDENCE EXAMINATION Deoxyribonucleic acid (DNA) is analyzed in body fluids, stains, and other biological tissues recovered from evidence. The results of DNA analysis of questioned biological samples are compared with the results ‘of DNADNA LEGISLATION 745 analysis of known samples. This analysis can associate victim(s) and/or ect(s) with each other or with a crime scene, ~~ « Blood Examinations « Collecting Known Samples i; * Blood » Saliva « Documenting, Collecting, Packaging, and Preserving DNA Evidence © Submitting DNA Evidence * Blood on a Person '« Blood on Surfaces or in Snow or Water Bloodstains * Blood Examination Request Letter Semen and Semen Stains + Seminal Evidence From Sexual Assault Vietim(s) ° Saliva and Urine A = Hair * Tissues, Bones, and Teeth : + Blood Examinations Examinations can determine the presence or absence of blood in stains. Examinations can also determine whether blood is human or non-human and can determine the animal species. Blood examinations cannot determine the age or the race of a person. Conventional serological techniques are not adequately informative to positively identify a person as the source of a stain. Collecting Known Samples Blood : Only qualified medical personnel should collect blood samples from a person. Collect at least two -ml tubes of blood in purple-top tubes with EDTA as an anticoagulant for DNA analysis. Collect drug or alcohol testing samples in gray-top tubes with Na F (sodium fluoride).Identify each tube with the date, time, subject's name, location, collector's name, case number, and evidence number. Refrigerate, do not freeze blood samples. Use cold packs, not dry ice during shipping. Pack liquid blood tubes individually in Styrofoam or cylindrical tube containers with absorbent material surrounding the tubes. Label the outer container KEEP IN A COOL DRY PLACE, REFRIGERATE UPON ARRIVAL, and BIOHAZARD. Submit to the Laboratory as soon as possible. Saliva Use clean cotton swabs to collect saliva samples. Rub the inside surfaces of the cheeks and gums thoroughly. Air dry the swabs and place in clean paper or an envelope with sealed corners. Do not use plastic containers. Identify each sample with the date, time, subject's name, location, collector's name, case number, and evidence number. Saliva samples do not need to be refrigerated. Submit to the Laboratory as soon as possible. Documenting, Collecting, Packaging, and Preserving DNA Evidence If DNA evidence is not properly documented, collected, packaged, and790 LAW OF FORENSIC SCIENCE « Is there a suggested alternative father? + Is there a completely unknown father? However in both situations there is always a residual doubt that is attendant with evidence of probability of a match. DNA and Criminal Cases Despite the issues and evidentiary hurdles that have been referred to in course of this project, Indian Courts have accepted the evidence of DNA experts. Unlike the area of paternity disputes where there seems to be some degree of controversy, in. the field of criminal law Courts have readily accepted DNA evidence in India. So far however, there have been no convictions solely on the basis of DNA evidence. One instance of the application of DNA profiling evidence being used to convict the accused can be seen in the case of Chandradevi v. State of Tamil Nadu. This sensational case involved the rape and murder of of seven teenage girls in the Ashram of a god-man Premananda alias Ravi, by the god _ man and his accomplices. In a lengthy judgment the Madras High Court ‘considered four important questions: 1. Whether the DNA evidence is generally accepted by the scientific community? 2. Whether the testing procedure used in this case is generally accepted as reliable, if performed properly? 3. Whether the tests were properly performed in this case? 4, Whether the conclusion reached in this case is acceptable? In answering the first question the Court relied on the extent to which Courts in United States had relied on evidence of DNA analysis. The second, third and fourth questions were all answered in the affirmative and the accused persons were convicted on various counts on the basis of the evidence of experts on DNA profiling and other evidence. ‘However, in another-case M.V Mahesh v. State of Karnataka,% the court acquitted the accused, one of the grounds being that the requisite amount of DNA of high molecular weight was not present so as to make the test results ~ sufficiently conclusive and accurate. The Court further went on to say that the DNA test was not a foolproof one and also commented on the fact that there were no national standards set for DNA testing in India. Such scrutiny of the DNA testing procedure is commendable and any benefit of doubt arising from malpractices in the scientific processes involved ought to go to the accused. DNA EVIDENCE IN INDIA One case which brought the DNA controversy to the fore was the rape. 92. Manu/TN/2335/2002. 93. 1996 Cr.L.J 221 (Kant).DNA LEGISLATION 791 and murder of Priyadarshini Mattoo. At trial®S the prosecution case relied on the DNA testo ib, which was positive whereas the defense challenged the validity of the test stating that it was not conducted according to prescribed rules. The defense alleged that because the crime scene, etc was not suggestive of sexual intercourse, the presence of semen was not possible and had to have been planted. At the time of the post-mortem, the ¢ laboratory. at rabad revealed — that there were in faci semen stains; the mix-up ‘ever led to the belief that the éviderice had been tampered With. In course of the case, the Judge proposed the following principles for the State: * obtaining known/unknown biological samples in accordance with the law; + maintaining the chain of custody of samples; monitoring laboratory procedure, protocol and quality control and; provision of a fair hearing to the accused by providing him with all evidence. ‘The testimony of experts would be admissible as long as the validity of the scientific procedure could be established. But it was alleged that proper procedures had not been adopted and all necessary precautions had not been taken. Further, it was submitted that the laboratory procedure was an inhouse technique of the CCMB, Hyderabad and not in conformity with the standard protocol. The Judge thus concluded that despite the match in the DNA profiles, the guilt of the accused could not be proved beyond reasonable doubt. In fact, the Judge actually pronounced, “Thought I know(Santosh Singh) is the man who committed the crime, I acquit him giving him the benefit of doubt.”” ‘The dilemma thet the trial Judge faces while dealing with DNA evidence is not If THe birdeH Uf pro! OH THE PFesseiltion has boon di but whether the’ evideiiée ‘meets the standard"6or Freq beyond reasonable doubt. Indian Courts are fast realizing the value o} DNA evidence and there are cases where it has been admitted as reliable, DNA evidence has been employed in cases such as State of Karnataka v. M.V. Mahesh, where the appellant's wife had disappeared “and” an 94, Priyadarshini Matto, 23, was allegedly raped and stangeled in her house in New Delhi, Santosh Kumar Singh, the son of senior IPS Officer was main accused and was ultimately acquitted, 95, CBI Vs. Santosh Singh FIR No-50/96, Court of Addl. Session Judge, New Delhi. 96. Bhadra Singha, “Sensational murder case approaches judgment day” 97. Dilip D’souza, “The Contact Us Ad” http/www.rediff.com/republio/ _jan/28dilip.html visited on 27/3/07.792 LAW OF FORENSIC SCIENCE investigation launched. Some human bones were recovered which were ‘subject to DNA analysis showed great similarity with the DNA of her close relatives, indicating that they may have belonged to her. In Patingi Balaram Venkata Ganesh v. State of Andhra Pradesh,% it was alleged that the accused and the co-accused had fired at the deceased. Witnesses identified the assailant as wearing a pink shirt and testified that the accused had been injured during the firing. The pistol used and the blood stained pink shirt were recovered and the blood found on the shirt was found to match with the blood of the accused as per the DNA test. Further, as the accused admitted to having been at the crime scene, the Court, relying on all the available evidence including the DNA evidence, found him guilty. ‘Though the acceptance of DNA evidence by the Court is laudable, the Court did neglect finer aspects of the technique such as the accuracy of the a ability. Because the results were not expressed relative to the native population of the accused, the figure of 1 in 30 billion may have been misleading. However, the science is still in the rudimentary stages of acceptance in India, challenges to its admissibility will, in the United States, arise accordingly. : Another area where the application of DNA profiling has tremendous potential is paternity testing. Conventional blood tests can only exclude a man from being the father of the child but DNA technology can conclusively prove whether a man is or is not the father of a child. Therefore, in determination of parentage, homicide, rape, and other cases which require identification, DNA evidence is bound to play an increasingly important role. Though it alone do | Prove be doubt that @ person was present at the crime scene or that he is it can be used as a combination with other evidence., While Courts may be reluctant to accept such novel scientific evidence, the reason may be that they are unable to appreciate its accuracy and applicability. The scientific community must then take the initiative to enlighten the level community about the nuances of DNA evidence within the legislative framework. Courts would then under section 45 of Evidence Act be able to develop an informed opinion with respect to the issue at hand. DNA PROFILING VIS-A-VIS INDIAN EVIDENCE ACT Application of DNA testing are now well established in developed countries.® In India, in several cases, the judgment has been given either based on the results of DNA testing aloné“or With other corroborative evidence, Although DNA test has been accepted in many countries, in India, 98, (2008) Cr.L.J. 4508, 99. DNA Identification Act( which allowed a DNA data bank to be created and amended the Criminal Code to provide a mechanism for a Judge to order persons convicted for a designated offences to prove blood, buccal or hair samples from which DNA profiles will be derived) has passed in Canada and Britian has criminal Justice and Public Order Act.DNA LEGISLATION 793 it has not_yet been included in the Evi discretion of the judges whether the DN. Evidence Act is to be accepted or not.. The first paternity dispute. in India! which was solved by DNA fingerprinting test, was the case No. M.C. 17 of 1988 in the Court of Chief Judicial Magistrate of Telicheery. The Chief Judicial Magistrate held that: “the evidence of expert is admissible under section 45 of the Indian Evidence Act, 1872. So also, the grounds on which the opinion is arrived at are also relevant under S. 51 of the Indian Evidence Act. PW4 is an expert in the matter of molecular biology and the evidence tendered by him is quite convincing and I have no reason why it should not be accepted. Just like the opinion of a chemical analyst, or like the opinion of fingerprint expert, opinion of PW4 who is also expert in the matter af cellular and molecular biology, is also acceptable.” The verdict was challenged in the High Court but the High Cout upheld the verdict of the Telicheery Court stating that the results of DNA test by itself could be deciding paternity. Many a times questions have been raised before the courts in case of DNA fingerprinting, creating a hindrance to the investigating agencies and they are: whether a suspect, or for that matter anybody can be forced to give a blood sample for testing? And whether such a testing would be considered a violation of Article 20(3) of the Constitution of India, which protects every citizen from providing self-incriminating evidence? And whether an order forcing an individual for DNA testing would be violation of his right to privacy? And if the person refuses to submit himselff herself to such test whether adverse evidence inference or presumption can be drawn by the Court? Justice Jagganath Rao, Chief Justice of Kerala High Court pointed the lacunae in this ‘regard“trT996"in a verdict of the paternity dispute. Justice Rao pointed out in his judgement two facts: DNA testing is yet not considered a conclusive proof under section 112 of the Evidence Act. And Law has not been passed by the Parliament for such testing. nce Act. It is therefore left to the ests under Section 45 of the Indian Section 112 uses the words, “conclusive proof and referred to ‘non-access as the sole exception”. Therefore, as the language of the section stands no other evidence is permissible except non-access, to prove that a person is not the father. This was held in several decided cases and also recently by the Supreme Court in Kanti Devi v. Poshi Ram. That case concerned DNA 100. Pandit, M.W and Dr, Lalji Singh, “DNA testing, Evidence Act and Expert Witness” The Indian Police Journal Oct/Dec 2000 p. 100. 101. Though the Indian Evidence Ammendment Bill, 2003, has proposed, apart from the sole exception of ‘non-access’ other exceptions by way of blood group tests, but subject to very stringent conditions, 102. AIR 2001 SC 2266804 LAW OF FORENSIC SCIENCE ‘These advanced crime detection tools have emerged as the most powerful branch in law which are termed as Neuro Law helping the Law Enforcement Agencies in administration of the Criminal Justice System. The Most important function of scientific investigation is to convert suspicion into reasonable certainty of either guilt or innocence. The foundation of criminal justice system is to prove the guilt of accused beyond all reasonable doubt and to protect the innocent from wrong conviction, This is all possible by the search of truth .On the way of Scientific evidences such as biological evidence cannot tell a lie and decision arrived at by such an evidence is said to be justice through science. The latest technique to elicit truth from suspect has become a topic of debate in context of its admissibility that is Narco Analysis. A generally acceptable scientific evidence which is to be acceptable to courts of law and scientific community is known as "Forensic" evidence. Such evidence must satisfy the test of admissibility according to the Indian Evidence Act, 1872, But the problem is admissibility of evidences given under neuroscience which are considered as Rape of mind of person. As it*hasdestroyed siifeguard exist in Article 20(3) of constitution of India, Right to Privacy is available under the Constitution of India as such no person can be compelled to undergo any scientific test for collective evidence against himself or herself. The problem has become grave with the coming into scene "Neuroscience". Neuroscience: Mother of Narco-Analysis Test The study of brain and the nervous system is called, “Neurosciene”. While investigating the cases some criminals prove to be a hard nut to crack. In such cases, to procure evidence, the investigating teams generally end up by adopting unfair and illegal means. Inspite of adopting unfair means, it is fruitful to rely on science. With the advance scientific discoveries, working with their experts, the investigating officer can read the mind of suspect and dig out concealed information and evidence. The whole neuro law is based on brain science which moreover Indian Constitution have permitted legislative system to take necessary steps in making law for justice through science. According to the Constitution of India, Part IV-A, it shall be the fundamental duties of every citizen of India to develop the scientific temper, humanism the spirit of inquiry and reform jthat has brought voleano in present day administration of criminal justice system, Neuroscience is an attempt to read brain and mind through it, Nobody can explain the complete functioning of brain because there is fundamental uncertainty about the mind of others. Neuro-imaging is a process which records different patterns of brain images taken under varying circumstances that may relate with different future behaviors and conditions Through the help of computer assisted tomography (CAT) the structure of living brain may be revealed. Through positron emission tomography (PET) and magnetic resonance imaging (MRI) different parts of brain functions may be studied. ‘The search for effective aids to interrogation is probably as old as man’s need to obtain authentic and true information. Development of new tools of investigation has led to the emergence of scientific tools of interrogation likeNEUROSCIENCE 80s Narco Analysis Tests. Such tests are a result of advances in science but they often raise doubt regarding basic human rights and about their reliability. Meaning: Narco Analysis Test ‘The term Narco Analysis is derieved from Greek word “narke” (meaning anesthesia or torpor) and is used to describe a diagnoistic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. The term Narco Analysis was coined by Horselley. Ever since the first reported use of criminal narco-analysis in 1922, the process has been under the scanner with absolutely unflattering results. Narco Analysis was rather unheard in India till recent past. However, it has been in the news in the past one year as a new investigation technique by various investigative agencies in India. Gist of Narco Analysis Testing Procedure The narco-analysis test is conducted by mixing 3 grams of Sodium Pentothal or Sodium Amytal dissolved in 3000 ml. of distilled water. Narco Test refers to the practice of administering barbiturates or certain other chemical substances, most often Pentothal Sodium, to lower a subject's inhibitions, in the hope that the subject will more freely share information and feelings. A person is able to lie by using his imagination. In the narco Analysis Test, the subject's inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like state efforts are made to obtain "probative truth" about the crime. Experts inject a subject with hypnotics like Sodium Pentothal or Sodium Amytal under the controlled circumstances of the laboratory. The dose is dependent on the person's sex, age, health and physical condition. The subject which is put in a state of Hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions. The subject is not in a position to speak up on his own but can answer specific but simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers. Wrong dose can send the subject into coma or even result in death. The rate of administration is controlled to drive the accused slowly into a hypnotic trance. The effect of the bio-molecules on the bio-activity of an individual is evident as the drug depresses the central nervons system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated by the investigating agencies in the presence of the doctors. ‘The revelations made during this stage are recorded both in video and audio cassettes. The report prepared by the experts is what is used in the process of collecting evidence. This procedure is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.806 LAW OF FORENSIC SCIENCE Associated Truth Finding Tests Apart from Narco test there are also other kinds of tests which are popularly used on the convict for extraction of truth, these are- Polygraph or Lie Detection Tests: It is an examination, which is based on an assumption that there is an interaction between the mind and body and is conducted by various components or the sensors of a polygraph machine, which are attached to the body of the person who is interrogated by the expert. The machine records the blood pressure, pulse rate and respiration and muscle movoments. Polygraph test is conducted in three phases- a pretest interview, chart recording and diagnosis. The examiner (a clinical or criminal psychologist) prepares a set of test questions depending upon the relevant information about the case provided by the investigating officer, such as the criminal charges against the person and statements made by the suspect. The subject is questioned and the reactions are measured. A baseline is established by asking questions whose answers the investigators know. Lying by a suspect is accompanied by specific, perceptible physiological and behavioural changes and the sensors and a wave pattern in the graph expose this. Deviation from the baseline is taken as a sign of lie, All these reactions are corroborated with other evidence gathered. The polygraph test was among the first scientific tests to be used by the interrogators. It was Keeler who further refined the polygraph machine by adding a Psycho-galvanometer to record the electrical resistance of the skin. P- 300 or the Brain Mapping Tests: ‘This test was developed and patented in 1995 by neurologist Dr. Lawrence A. Farwell, Director and Chief Scientist “Brain Wave Science”, IOWA. In this method, called the “Brain-wave finger printing’; the accused is first interviewed and interrogated to find out whether he is concealing any information. Then sensors are attached to the subject's head and the person is seated before a computer monitor. He is then shown certain images or made to hear certain sounds. The sensors monitor electrical activity in the brain and register P300 waves, which are generated only if-the subject has connection with the stimulus i.e. picture or sound. The subject is not asked any questions. Dr, Farwell has published that a MERMER (Memory and Encoding Related Multifaceted Hlectro Encephalographic Response) is initiated in the accused when his brain recognizes noteworthy information pertaining to the crime. These stimuli are called the “target stimuli”, In a nutshell, Brain finger printing test matches information stored in the brain with information from the crime scene. Studies have shown that an innocent suspect’s brain would not have stored or recorded certain information, which an actual perpetrator’s brain would have stored. In USA, the FBI has been making use of “Brain mapping technique” to convict criminals. Narco Analysis In Indian Context A few democratic countries, India most notably, still continue to use narco-analysis. This has come under increasing criticism from the public andNEUROSCIENCE 807 the media in that country. Narco-analysis is not openly permitted for investigative purposes in most developed and/or democratic countries. In India, the narco-enalysis test is done by a team comprising of an anesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio- videographer, and supporting nursing staff, The forensic psychologist will prepare the report about the revelations, which will be accompanied by a compact dise of audio-video recordings. The strength of the revelations, if necessary, is further verified by subjecting the person to polygraph and brain mapping tests. Narco-analysis is steadily being mainstreamed into investigations, court hearings, and laboratories in India, However, it raises serious scientific, legal, and ethical questions. These need to be addressed urgently before the practice spreads further. Narco-analysis has become an increasingly, perhaps alarmingly, common term in India. It refers to the process of psyciiciner=ys conducted on a subject by inducing a sleep-like state with the aid o barbiturates or other drugs. In a spate of high profile cases, such as those of the Nithari killers and the Mumbai train blasts, suspects have been whisked away to undergo an interview drugged with the barbiturate sodium pentothal. Self-Incrimination v. Truth Serum: Article 20 (3) of the Indian Constitution is the syncrestistic result of the Anglo-saxon jurisprudence and India's realities, culture and ethos, proving once again the cosmological nexus of human rights jurisprudence the world over. The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3). It deals with the privilege against self- incrimination. It has its equivalents in the Magna Carta, the Talmud, and the law of almost every civilized country. The privilege against ‘self- incrimination is a fundamental canon of Common Jaw criminal jurisprudence. ‘The Characteristics of this Principle are: * The accused is presumed to be innocent, * That it is for the prosecution to establish his guilt, * That the accused need not make any statement against his will. ‘These propositions emanate from an apprehension that if compulsory cxamination of an accused were to be permitted then force and torture may be used against him to entrap him into fatal contradictions. The privilege against self-incriminafion thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice. Art. 20(3) which embody this privilege reads, “No person accused of any offence shall be compelled to be a witness against himself”. On analysis, this provision is found to contain the following components: It is a right available to a person “accused of an offence”; It is a protection against such “compulsion” “to be a witness” It is a protection against such “compulsion” resulting in his giving evidence against himself. All the three ingredients must necessarily coexist before theS the nz Noone van “cused, who has tha. keep silent i estigation), Y the admi. istration of | 8 rc trusion into one's mind is being Testored to, thereby pullifving the valias, nd legitimacy of the Right to git has been PeCifical], i lence. Right ¢ Privacy iVacy Violations that ” opinion upon Point of foreign law, or of , s OF as to handwrrit TBE impression, the Pinions Upon that Point or Persons especially skilled in such foreign law, or oF science, 9; art, or as to identity of hang Writing or finger im relevent, Section is silent on other ag vidence thar seine 8amissible in we in criminal Proceedings. The «+ i i ‘tion, widely known Tight against forced i 0) ee Right to Silence is enshrined jn the ode of Criminal Procedure (Cy. p. the Indi net atution. In the co 2-0, the legislature Buarded a citizen's rig! inst self.inen; ination 161 (2) of the f Criminal Proc dure states that « Person “jg ound to ansyy, 7 erathfully all g lestions, put to Y [a police) cer, other ‘han questions 4 3 1 Which, would i endeney to expos that Person to a criminal 28°, penalty o~ forfeiture” » State, nceused to narcg, alysis testimon, The court said about the accuse to the Jal oratory for g, sts ay Such tests ig uiteNEUROSCIENCE 809 TI. In 2004, the Bombay High Court ruled in the multi-crore-rupee fake Stamp paper case that subjecting an accused to certain tests like narco. analysis does not violate the fundamental right against self-incrimination, Statements made under narco-analysis arc’ not admissible in evidence However, recoveries resulting from such drugged interviews are admissible es corroborative evidence. This is, arguably, a roundabost way to subverting the right to silence —acquiring the information on where to find the weapon from the subject when, in his right senses, he would not turn witness against d

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