Author: Shubhangi Gehlot
III Year | The Maharaja Saiyajirao University of Baroda, Vadodara

Introduction:

One of the basic fundamental rights enshrined in the Indian Constitution is the “Right to Life and Liberty”.^[1] Its scope and meaning have evolved through the years. It now recognizes ‘The right to speedy trial’ under its arena, and this was established in ‘State of Maharashtra v. Champalal Punjaji Shah’^[2]. However, it is difficult to follow while disposing cases.

The gigantic compilation of pending cases is evidently due to many reasons. One of the main reasons for such delay is the absence of witnesses. This is because our judicial system depends heavily on the same and constantly uses traditional ways of investigation. Besides the witnesses, there is a need for the use of an advanced level of forensic science, especially in perplexing criminal cases, to serve justice without lacunae.

Growing Need of Forensic Evidence:

The use of advanced-scientific techniques must become an important part of the complete legal process, especially in cases where crime is committed beyond public eyes, i.e, in privacy, like death by domestic violence or police brutality in custody. The Supreme Court of India in D. K. Basu v. State of West Bengal,^[3] asked the enforcing agencies to develop scientific methods of investigation and interrogation in the cases of custodial deaths.

Furthermore, the Report of the Committee on Draft National Policy on Criminal Justice emphasized the need for appropriate training, professionalism, research, and development of forensic science in the policy framework.^[4]

Similarly, The Malimath Committee and Justice Verma Committee laid down the requirements for the complete process of DNA sampling ranging from police setting to safe storage.^[5] The goal is to protect every victim’s constitutional and human right to gain true justice in the criminal justice process.

Self Incrimination Angle:

There are contrasting views and arguments which justify the old school investigation system. One of them is that forensic evidence is a violation of the right against self-incrimination.

Supreme Court has held that mere direction by the court under Section 73 of The Indian Evidence Act, 1872 to the accused to give writing or finger impression does not violate Art 20(3) of Constitution. Moreover, the person is not termed as a witness because ‘to be a witness’ is to ‘impart knowledge’.^[6]

Hence, something present naturally in the body like DNA in the form of hair, semen, nails, etc. would not amount to self-incrimination as it is naturally present in the body.

The limited use of Forensic evidence in the judicial system:

Due to the non-availability of proper technology to manage, preserve and maintain various types of scientific evidence, the courts do not rely profoundly on them.

A study in 2011 showed that there were only 47 cases in the Supreme Court and various High Courts where DNA profiling has played a predominant role. These numbers are lamentably low in criminal cases, especially in rape cases where ironically, it is most needed.^[7]

Advanced Forensic Evidence and Methods:

With the growing crime rate and especially crimes where there is a lack of physical evidence, we need smarter techniques to help us pay closer attention. There are many scientific methods other than DNA profiling.

Firstly, many times, polygraph technique is used in these kinds of perplexing cases but the accuracy of polygraph and other lie detector tests are estimated to be only between 80%-90%^[8]. Hence, these results may not be binding on the court due to lack of accurate evidence.

Secondly, the court and investigation are mostly limited to witnesses. They do not acknowledge the problem of witnesses turning hostile, leading to unjust acquittal. Moreover, the concept of ‘false memory’ and ‘flashbulb memory’ can also drop the probability of an accurate witness. The cases where proceedings run for years in the courtroom lead to adulterated or lost memories of the crime on the part of the witness.

Thirdly, society consists of a bunch of distinctive people with conflicting and contradicting ideologies, thus, leading to a difference in every individual’s psychology. This brings out the need for ‘Forensic Linguistics’ after Forensic fingerprinting and transcription in a later stage of the investigation. It also calls for a behavioural science department with many observations such as Conversation Analysis, Discourse Analysis, Cognitive Analysis, etc.

Finally, according to the legal setup, there is no crime without mens rea (guilty mind). Hence, to prove the mental element, there is a need for psychology to study and examine the person’s mind in a conscious and subconscious state.

Conclusion:

The objective of every court and investigation staff should be to provide a just and speedy trial. This must be done with optimum evidence, to secure a person’s case without unjust acquittal and years of court proceedings. Only the incorporation of modern-day scientific knowledge will help achieve this.

Forensic evidence should not only be admissible in courts, but should also help in the study of the convicts to secure the basic rights of society against crimes. Considering and acting upon these issues by the nation’s authorities, can protect human rights more effectively.

Footnotes:

^[1] INDIAN CONST. art 21.

^[2] AIR 1981 SC1675.

^[3]  AIR 1997 SC 610.

^[4] Report of the Committee on Draft National Policy on Criminal Justice, Ministry of Home Affairs, Government of India, July 2007.

^[5] Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, Report, Volume 1, March 2003; Report of the Committee on Amendments to Criminal Law, 23rd Jan 2013.

^[6]  State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.

^[7] Dipa Dube, ‘Determining the Applicability of DNA Evidence in Rape Trials in India’, Vol. 2 (1), IJSSR, 2014. 26.

^[8] Gareth Evans, How credible are lie detector tests? BBC NEWS, (Dec. 12, 2020, 10:00 AM), https://www.bbc.com/news/world-us-canada-45736631#:~:text=%22If%20the%20examiner%20is%20well,tell%20if%20someone%20is%20lying.

Editor: Ananya Manjunath