New Delhi: From highlighting lack of funding and inadequate infrastructure to pushing for a law to keep up with scientific advancements and not rely on ‘unscientific forensics’, a study has revealed several chinks in India’s forensic armour.
Released Monday, the Forensic Science India report: A study of Forensic Science Laboratories (2013-2017) is a first-of-its-kind study of forensic science laboratories (FSLs) conducted by Project 39A — a criminal justice programme at the National Law University Delhi — in collaboration with the Ministry of Home Affairs. Thirty FSLs across 20 states and Union territories participated in this study.
The study comes at a time when the central government, while proposing to replace the existing Code of Criminal Procedure (CrPC), 1973, with the ‘Bharatiya Nagarik Suraksha Sanhita 2023‘, has cited, among other things, the inadequate use of forensics as one of the “biggest hurdles in speedy delivery of justice, which impacts poor man adversely”.
The Project 39A report now has some startling findings. For instance, it found that none of the laboratories, including Central FSLs (CFSLs), have accounted for any funds for research and development (R&D), and that many laboratories spoke about not being able to conduct any research work due to the high pendency of cases and limited staff.
A note attached to the report from Anup Surendranath, executive director of Project 39A, also explained how lack of legislative or judicial standards to govern the assessment of forensic evidence still allows “unscientific forensic disciplines” to be relied on by Indian courts.
“For instance, while some foreign courts do not admit bitemark evidence as its foundational validity has been disproved, Indian courts continue to convict on the basis of it,” the note said.
ThePrint brings you some of the other significant findings of the Project 39A report.
How equipped are our forensic labs?
Forensic laboratories in India have been in existence since the British colonial era, and are now administered in a three-tiered structure of Central, state and regional FSLs (CFSLs, SFSLs, RFSLs), with additional district mobile forensic units (MFSUs). According to the report, there are currently 117 functional FSLs — 8 CFSLs, 31 SFSLs and 78 RFSLs. Of this, 10 are accredited by the National Accreditation Board for Testing and Calibration Laboratories (NABL) — the apex body for accrediting laboratories in India.
The report highlighted several issues with these laboratories, including lack of consistent funding, cumbersome procedures for budget approvals and procurement, and inadequate infrastructure. It also found scientific staff across several laboratories plagued with inadequate staffing, and consequently, struggling with increased workload.
According to the report, staff members also complained of inadequate health and safety measures and non-compliance with contamination minimisation procedures.
The report then represented a catalog of recommendations to address these concerns. For instance, it quoted an Assistant Director at an SFSL as saying: “Police collect the evidence, keep it in their malkhana (evidence room) and then send it to the FSL. No idea how it is preserved there”. For this, it recommends that standardised protocols based on best practices for collection, storage, and transport of other types of forensic evidence should be formulated.
The report also found that of the 27 SFSLs and RFSLs covered within the project, 15 were under the administrative and financial control of the respective state police departments. According to the report, several SFSLs and RFSLs shared concerns about the administrative and financial control of state police departments.
Apart from interference in budget and expenditure decisions, SFSLs and RFSLs also indicated that officials from police departments can exert pressure to determine the priority of cases for forensic examination, or even influence decision-making in individual casework, the report added.
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How scientific is forensic evidence?
The report emphasised the need to ensure that the forensic methods being used are foundationally valid. For this, it relies on a 2009 report by US-based non-profit National Academy of Sciences (NAS). Called the Strengthening Forensic Science in the United States: A Path Forward, the report had shed light on a critical need to reform the forensic sciences, and had claimed that many commonly-used forensic techniques had not undergone necessary testing to be sufficiently valid and reliable.
Referring to this report, the Project 39A report asserts that the lack of research into the validity and reliability of many forensic disciplines has been acknowledged by renowned scientific bodies in other jurisdictions.
For instance, a footnote points out how a National Institute of Standards and Technology (NIST) draft report last year reviewed the scientific foundations of bitemark analysis, a forensic technique in which marks on the skin of a biting victim are compared with the teeth of a suspected biter. It found that forensic bitemark analysis lacks a sufficient scientific foundation, the Project 39A report says.
It takes note of another report by the US President’s Council of Advisors on Science and Technology (PCAST) released in 2016. That report, according to Project 39A, says there is insufficient research on microscopic hair analysis to determine its accuracy, with a 2002 FBI study showing a false positive error rate of 11 percent.
The Project 39A report also refers to a book titled The Truth Machines: Policing, Violence, and Scientific Interrogations in India (Law, Meaning, And Violence). The book, written by Jinee Lokaneeta, associate dean of curriculum and professor of political science and international relations at New Jersey’s Drew University, discusses the lack of scientific evidence in disciplines, including brain mapping, narco-analysis and polygraph.
The report therefore asserts that in view of the finality of legal process, several aspects should be considered by law. These, it said, include the empirical basis for the forensic discipline, its inherent limitations and the potential for error.
It further says: “Considering the perpetual revision within science, the law must adapt and should not be bound by judicial precedent in determining questions of the admissibility and weight of forensic evidence”.
The focus, the Project 39A report says, should be on assessing the reliability of forensic evidence and ensuring that the law develops in correspondence with scientific advancements, rather than on maintaining consistency in the law.
In the same section, it quotes the director of an SFSL as saying, “Lawyers should know the limitations of science. 100% perfect science does not exist”.
The report then goes on to highlight the need for a cultural shift within the legal practice relating to expert scientific evidence, pointing out that judges and lawyers may often lack the expertise to comprehend and assess such evidence. Therefore, they need to develop an understanding of the principles underlying different forensic disciplines and their limitations, the report said.
It also emphasised on the need to train judges, prosecutors and lawyers on the scientific basis of different forensic disciplines and their inherent limitations, as well as the need for a rigorous judicial examination of the reliability of forensic techniques or the manner in which they are applied by the examiner.
DNA evidence
The report noted that DNA evidence has been relied on in civil and criminal disputes in India since 1991. In 2005, amendments to the CrPC said that biological samples collected from accused persons and victims should be sent for DNA examination, especially in rape cases, the report said.
While emphasising on the need for proper packaging and maintenance of the chain of custody of biological samples, the report pointed out that the courts have not identified any specific quality standards or the consequences of non-compliance with them on the DNA evidence.
“While some courts have reiterated the importance of DNA evidence generally or the qualification of the expert to explain their reliance on the DNA report, others have rejected such evidence because they did not examine the underlying basis of the report towards determining if the DNA profiling was conducted reliably,” it claimed.
This situation, it said, is aggravated by the lack of clarity on the documents that should be submitted along with DNA reports. It further explained that in case the genotypes detected in the evidence and reference sample match on all tested loci, statistical analysis should be conducted to explain the significance of the match, without which the DNA report would be incomplete. However, it then pointed out that DNA profiling divisions often do not conduct statistical analysis.
It explained: “The process of DNA profiling examines the composition of DNA in specific locations or markers on the DNA, which are known to show high variations across individuals. Hence, there is a possibility that the profiles of two unrelated individuals may match with each other at one or all of the tested markers”.
The report, therefore, asserted that to explain the possibility of an unrelated individual having the same profile, all DNA results must include a statistical analysis of the DNA match, based on the frequency of the observed DNA profile within the given population.
The report, however, said that there is no clarity on this aspect as well by the courts, and that courts in other countries have held that DNA reports would be inadmissible without proper statistical evaluation, ordering the reversal of convictions or retrials if such reports had been wrongly admitted. It, therefore, asserted that courts in India should emphasise the need for statistical analysis as a requirement for the admissibility of DNA reports.
A Bar council-like body
According to the report, the Indian forensic system is in “dire need of a robust and effective regulatory system”. It, therefore, suggested enactment of a Forensic Science Regulation Act (FSR Act), with the aim of establishing a regulatory system for FSLs, forensic education and forensic science practitioners.
Under the FSR Act, it has recommended establishing two bodies: a Forensic Science Regulator (FSR) and a Forensic Council of India (FCOI).
According to the recommendations, the FSR would be the forensic standard-setting and monitoring body for forensic science in India. Among other things, it would need to formulate a code of conduct applicable to government-run and private forensic science laboratories or units in India.
It would also be empowered with guiding laboratories on technical aspects, and ensuring adherence to the code of conduct, the report said, advocating for a strong FSR with a defined statutory mandate, to monitor and support laboratory functioning at the state and central levels.
On the other hand, it said that the FCOI would be similar to the Bar Council of India and the National Medical Commission, the report said, adding that its aim would be to regulate forensic science education and forensic practitioners in India.
(Edited by Uttara Ramaswamy)
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