Opinion | Forensic DNA technology and the miasma of distrust4 min read . Updated: 10 Sep 2019, 11:51 PM IST
DNA data may offer us a profile of criminals but could drag their innocent relatives into the net as well
Modern forensic science owes more than we realize to technologies developed by the British colonial government in India. Graphology (handwriting analysis) scaled impressive heights in the hands of the Hardless family in Calcutta (now Kolkata), even as the use of these techniques was on the wane in English courts. The serological analysis of bloodstains found at crime scenes was practically invented in British India; so much so that the first office of the imperial serologist was established by the colonial government in Calcutta.
But why was it that forensic science developed in far flung outposts of the Empire instead of back home in England?
Whenever they had to explain away the failures of the colonial project in India, the British used a special narrative. They portrayed themselves as paragons of honesty and held all Indians out to be embodiments of deceit. The natives, they said, were devoid of moral principles—they lied, gave and received bribes and in a myriad other ways wilfully rejected the tenets of justice. The reason why it was so difficult to extend the rule of law to the colonies, they argued, was that English laws depended on truth-telling under oath and that was meaningless in a culture where there was no prohibition against the fabrication of facts. And so colonial administrators decided they needed technology that could elicit truth from available evidence independent of the testimony of witnesses.
Courts of that time in England were not convinced that forensic techniques were accurate enough to detect the truth. In a number of contemporary UK cases, courts rejected the use of forensic evidence on the grounds that they had a low probability of being correct. However, since judges in India were not willing to rely on native witnesses, Indian courts began to rely heavily on forensics. We have no statistics to show exactly how many people suffered wrongful conviction as a result of this approach, but, given how rudimentary these techniques were, we can only imagine that it was a large number.
In time, thanks to this judicial support and use by law enforcement agencies in the subcontinent, these technologies did improve to the point where they became accurate enough to be used more widely. But we must not forget the only reason those advances took place in India was that it was a colonial antidote to the “native mendacity" of the Indian populace and the means by which an imperial government could impose “civilized" rules on a society they thought was untrustworthy.
In order to extract maximum value out of forensic science, the British government passed enabling laws that allowed their use. This is why the criminal laws that were transplanted onto Indian shores were subtly, but significantly, different from their counterparts in the UK. We can still see evidence of this in the Indian Penal Code, particularly in the provisions that deal with perjury and forgery, which are far more extensive and punitive in India than they ever were in the UK.
Long after the British left our shores, the Indian criminal justice system continues to maintain a level of scepticism when it comes to believing what is presented to them. Law enforcement agencies operate on the basis that everything said to them is false—to the extent that the burden of proving innocence is often placed on the accused, instead of the other way around. In a country where the process is often worse than the punishment, this approach can be harrowing to everyone even remotely associated with a criminal investigation.
What this has resulted in is the widespread use of technology, wherever possible, to assist law enforcement agencies with their efforts. Whenever any new technology becomes available that has the potential of improving the ability of law enforcement to detect the truth, our legislators are quick to enact legislation to enable their use. They rarely pause to think of the consequences of using these new technologies, and whether, by adopting them, we will end up violating the fundamental rights of innocent bystanders.
In recent times, there is no better example of this sort of thinking than the passage of the DNA Technology (Use and Application) Regulation Bill, 2019, a draft legislation that looks to establish DNA data banks around the country in order to identify victims, offenders, suspects and the like using genetic information. These data banks are going to get crime-scene DNA information both voluntarily—from those present at the scene of a crime or who are being questioned in connection with a probe—and mandatorily, from those accused of serious offences. The data that is accumulated in this manner will then be used to identify people involved in criminal cases, as evidence in judicial proceedings, and also to facilitate the prosecution of criminal cases.
As impressive as DNA technology might be, it is still far from perfect. Instances abound where polluted DNA crime scene data has resulted in the prosecution of innocents. As much as DNA information provides us a profile of criminals, it could drag their innocent relatives into the net as well. This sort of use of such forensic technology constitutes a disproportionate incursion into our privacy and we need to ask ourselves whether such a law is really necessary.
But in order to do that, we will need to clear our minds of the miasma of distrust that is our unfortunate colonial legacy.
Rahul Matthan is a partner at Trilegal and author of ‘Privacy 3.0: Unlocking Our Data Driven Future’