Author(s): Darshita Saxena
Paper Details: Volume 4, Issue 4
Citation: IJLSSS 4(4) 22
Page No: 238 – 247
ABSTRACT
Investigative genetic genealogy represents an emergent forensic methodology with significant investigative potential yet remains unregulated under Indian criminal law. This article examines the statutory, constitutional, and evidentiary dimensions of deploying investigative genetic genealogy within India’s criminal investigation framework. The analysis demonstrates that the Bharatiya Nagarik Suraksha Sanhita 2023, the Bharatiya Sakshya Adhiniyam 2023, and related instruments contain no specific provisions authorising, regulating, or governing investigative genetic genealogy. This regulatory silence creates three inter-related constitutional challenges: the authorisation problem (the absence of specific statutory powers), the evidence collection problem (the ambiguous status of DNA samples collected from genealogy-identified suspects), and the admissibility problem (the lack of reliability standards for genealogical inferences). Drawing on the constitutional jurisprudence of the Indian Supreme Court; particularly Justice K.S. Puttaswamy v. Union of India, Selvi v. State of Karnataka, and D.K. Basu v. State of West Bengal, this article proposes a comprehensive four-pillar regulatory framework grounded in proportionality, purpose limitation, participatory consent, and procedural accountability. The article concludes with specific legislative recommendations for Parliament, including amendments to the criminal procedure and evidence statutes, and a model Forensic Genetic Genealogy (Regulation) Act that would bring investigative genetic genealogy within the constitutional bounds established by India’s fundamental rights jurisprudence.
Keywords: investigative genetic genealogy, criminal investigation, forensic DNA evidence, constitutional law, criminal procedure, privacy rights, statutory regulation
1. INTRODUCTION
The detection and investigation of crime in India operates within a carefully structured legal framework established through the Bharatiya Nyaya Sanhita 2023, the Bharatiya Nagarik Suraksha Sanhita 2023, and the Bharatiya Sakshya Adhiniyam 2023. These three foundational instruments collectively establish the parameters within which investigative agencies must function, defining both the scope of investigative powers available to police officers and the evidentiary standards that must be satisfied before evidence may be admitted in criminal proceedings. However, this framework confronts an unprecedented challenge posed by the emergence of investigative genetic genealogy as a forensic tool.
Investigative genetic genealogy differs fundamentally from conventional forensic DNA profiling. Rather than comparing a crime scene sample against a suspect’s reference sample, investigative genetic genealogy involves uploading unidentified perpetrator DNA to commercial genealogical databases, identifying partial genetic matches with users who may be distant biological relatives of the perpetrator, and constructing extended family trees to progressively narrow investigative possibilities. The technique has demonstrated remarkable success in solving cold cases internationally, including serial homicides and sexual offences that conventional investigation failed to resolve.
Yet despite this investigative potential and the rapid maturation of conditions favouring its deployment in India, no provision of the criminal law statutes specifically authorises, regulates, or governs investigative genetic genealogy. This regulatory absence is not merely a technical legislative oversight, it constitutes a fundamental constitutional problem. The Supreme Court’s decisions in Justice K.S. Puttaswamy v. Union of India and Anuradha Bhasin v. Union of India establish that state action affecting fundamental rights must rest upon specific legal foundation rather than general executive powers. Investigative genetic genealogy, as currently practised without statutory authority, raises urgent questions concerning the constitutional validity of its deployment.
2. THE STATUTORY FRAMEWORK AND INVESTIGATIVE GENETIC GENEALOGY
2.1 THE INVESTIGATION ARCHITECTURE UNDER THE BNSS
The Bharatiya Nagarik Suraksha Sanhita 2023 establishes a comprehensive framework for criminal investigation that reflects decades of accumulated procedural jurisprudence. The framework contemplates a structured investigation process beginning with First Information Report registration and proceeding through defined investigative stages, each subject to specific procedural safeguards. Section 173 of the BNSS empowers investigating officers to pursue investigations into cognisable offences, while Sections 179 to 182 govern the examination of witnesses and other persons acquainted with relevant facts. Sections 185 to 215 establish detailed protocols for search and seizure operations, and Sections 53 and 53A govern the medical examination of arrested persons, including the extraction of biological samples for forensic analysis.
This framework presupposes a particular investigative model: the investigating officer works with identified suspects or persons reasonably suspected of involvement in an offence. Biological samples are collected from such identified individuals pursuant to specific statutory authority. The samples are then subjected to forensic comparison with crime scene material using conventional DNA profiling protocols. The system is structured, sequential, and grounded in identified persons.
2.2 THE STATUTORY GAP: INVESTIGATIVE GENETIC GENEALOGY BEYOND THE BNSS FRAMEWORK
Investigative genetic genealogy operates in an entirely different investigative space. At the outset of an investigative genetic genealogy investigation, no identified suspect exists. The investigator possesses only a crime scene DNA sample and seeks to identify an unknown perpetrator through database searching. The core investigative operations of investigative genetic genealogy, uploading crime scene DNA to private commercial databases, searching for familial matches, and constructing genealogical family trees find no express authorization within the BNSS.
The investigating officer might argue that these operations fall within the broad investigative power conferred by Section 173, which permits the pursuit of any line of inquiry reasonably related to the investigation. However, the Supreme Court’s post-Puttaswamy jurisprudence rejects this general power argument when fundamental rights are implicated. In Anuradha Bhasin v. Union of India, the Court held that restrictions on constitutional rights require specific statutory authorization rather than reliance on general powers. Investigative genetic genealogy involves accessing genetic information, information characterized in Puttaswamy itself as engaging the most intimate dimensions of privacy and therefore requires express statutory authorization rather than subsumption within general investigative powers.
3. CONSTITUTIONAL DIMENSIONS AND FUNDAMENTAL RIGHTS
3.1 ARTICLE 21 PRIVACY AND THE PUTTASWAMY FRAMEWORK
The Supreme Court’s decision in Justice K.S. Puttaswamy v. Union of India established a four-element proportionality test applicable to any state action affecting the right to privacy under Article 21 of the Constitution. This test requires that state action must be: (a) prescribed by a specific law; (b) serve a legitimate state aim of sufficient importance; (c) be the least restrictive means of achieving that aim; and (d) be accompanied by procedural safeguards against abuse.
Applied to investigative genetic genealogy, the Puttaswamy test generates specific constitutional requirements. The legality element demands that investigative genetic genealogy be authorized by specific statutory provision not executive order, police circular, or general investigative power. The legitimate aim element is satisfied for serious offences (homicide, sexual assault), but excludes investigative genetic genealogy deployment against minor offences. The necessity/proportionality element requires that investigative genetic genealogy be deployed only when conventional investigative methods have been exhausted. The procedural safeguards element requires prior judicial authorisation, a requirement currently absent from the criminal investigation framework.
3.2 ARTICLE 20(3) AND SELF-INCRIMINATION RIGHTS
The Supreme Court’s decision in Selvi v. State of Karnataka addressed the constitutional permissibility of investigative techniques that extract information from a person’s biological constitution without consent. The Court held that Article 20(3), which protects against compelled self-incrimination extends beyond verbal testimony to encompass the compelled extraction of biological information. The scope of this protection extends to any information whose source is the accused person’s own body or mind.
Investigative genetic genealogy engages Article 20(3) protections in two distinct scenarios. First, when genetic information voluntarily contributed to a commercial database is used investigatively without the contributor’s knowledge or consent, the use may constitute constructive compulsion within Selvi’s expansive reading of the self-incrimination guarantee. Second, when a suspect identified through investigative genetic genealogy is arrested and a DNA reference sample is collected for confirmatory analysis, the compelled collection engages Article 20(3) protections in a context where the arrest itself rests entirely on genealogical inference rather than independent evidence of involvement.
3.3 ARTICLE 14 EQUALITY AND DATABASE BIAS
The equality guarantee of Article 14 of the Constitution, as interpreted in E.P. Royappa v. State of Tamil Nadu and confirmed in Maneka Gandhi v. Union of India, prohibits arbitrary state action. When investigative genetic genealogy is deployed, the genealogical leads it generates depend substantially on the demographic composition of the database searched. Because members of Scheduled Castes, Scheduled Tribes, and religious minorities are systematically overrepresented in criminal justice records, a genealogical database reflecting the composition of forensic DNA records will generate investigative leads that disproportionately implicate individuals from these communities.
This disproportionate impact does not result from any greater actual propensity to commit offences, but from the structural operation of investigative genetic genealogy against inherently biased databases. Such classification implicating individuals as investigative suspects on the basis of membership in a community overrepresented in forensic records constitutes arbitrary classification precisely prohibited by Article 14. Any regulatory framework must therefore incorporate mandatory demographic impact assessments and ongoing monitoring of investigative genetic genealogy outcomes, ensuring that no person is arrested, detained, or charged solely on genealogical leads without independent corroborating evidence.
4. EVIDENTIARY CHALLENGES AND FORENSIC RELIABILITY
The Bharatiya Sakshya Adhiniyam 2023 governs the admissibility of forensic evidence in criminal proceedings. Section 39 of the BSA permits the admission of expert opinions on matters requiring specialized knowledge, while Sections 62 to 65 establish requirements for the admissibility of electronic records. The Supreme Court has developed a three-stage test for forensic expert evidence in cases including State of H.P. v. Jai Lal, Santosh Kumar Singh v. State, and Rajkumar v. State of Madhya Pradesh, requiring: (a) expert qualification in the relevant field; (b) the methodology employed must be recognized within the relevant scientific community; and (c) a logical connection must exist between the methodology and the conclusions drawn.
Investigative genetic genealogy challenges each element of this established test. The expert qualification requirement presupposes expertise that does not yet exist within Indian forensic science: the combination of forensic genetics, genealogical research, and family tree construction. The methodology requirement demands that investigative genetic genealogy be validated as a recognized scientific methodology, a validation that has not occurred in the Indian context. The logical connection requirement confronts the distinctive evidentiary structure of investigative genetic genealogy: unlike conventional DNA profiling which produces a probabilistic match between two identified samples, investigative genetic genealogy produces a genealogical inference an inductive conclusion that because X is a biological relative of the crime scene DNA contributor, X is a probable perpetrator.
Chain of custody presents a distinctive challenge for investigative genetic genealogy evidence. Unlike conventional forensic evidence which remains within state custody throughout analysis, investigative genetic genealogy necessarily involves transmitting biological information to private commercial entities operating under foreign data security protocols. The requirement of a Section 65B certificate attesting to the integrity and reliability of electronic records (as interpreted in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal) requires certification by a responsible official of the computer system. Obtaining such certification from a foreign private company raises both practical and constitutional concerns about the admissibility of evidence certified by private commercial entities rather than public forensic officials.
5. TOWARD A CONSTITUTIONAL FRAMEWORK: THE FOUR-PILLAR MODEL
The regulatory framework necessary to bring investigative genetic genealogy within constitutional bounds must rest upon four foundational pillars, each grounded in Indian constitutional jurisprudence: proportionality, purpose limitation, participatory consent, and procedural accountability.
The proportionality pillar restricts investigative genetic genealogy authorization to serious offences for which the investigative necessity is greatest: homicide, sexual assault, trafficking, terrorism, and child sexual offences. Investigative genetic genealogy authorization should be unavailable for property crimes, financial offences, drug offences, or minor felonies. The investigating agency must demonstrate to the authorizing Magistrate that conventional investigative techniques have been exhausted before investigative genetic genealogy authorization may be granted.
The purpose limitation pillar ensures that genetic information derived from investigative genetic genealogy investigations is used exclusively for the specific investigation that justified its collection and is destroyed at the conclusion of that investigation. Purpose limitation prevents function creep: investigative genetic genealogy-derived genealogical data may not be repurposed for future investigations, may not populate forensic databases for secondary searching, and may not contribute to the construction of a general-purpose genetic intelligence database.
The participatory consent pillar addresses the obligations of genealogical database operators and the notification rights of individuals investigated through investigative genetic genealogy. Database operators must implement specific notice mechanisms informing users that their data may be accessed by law enforcement under statutory conditions, must provide opt-in mechanisms separate from general platform consent, and must maintain audit logs of law enforcement access. Individuals identified as suspects through investigative genetic genealogy must be informed of this fact when investigations conclude without charge, enabling them to exercise remedies for unlawful investigation.
The procedural accountability pillar provides institutional mechanisms for enforcement. All investigative genetic genealogy authorizations must receive prior judicial approval from the Judicial Magistrate having jurisdiction over the investigation’s geographic territory. A statutory Genetic Forensics Oversight Board, comprising a retired High Court judge as chairperson, senior forensic scientists, academic experts, and civil society representatives must review investigative genetic genealogy authorizations and conduct periodic compliance audits. Mandatory record-keeping requirements ensure comprehensive documentation of all investigative genetic genealogy investigations, enabling subsequent judicial review and individual remedies.
6. LEGISLATIVE RECOMMENDATIONS
Parliament should enact a three-part legislative response. First, the Bharatiya Nagarik Suraksha Sanhita 2023 should be amended to insert a new Chapter establishing the procedural framework for investigative genetic genealogy investigations, including provisions on investigative genetic genealogy authorization applications, Magistrate approval procedures, record-keeping obligations, purpose limitation requirements, and the consequences of unauthorized investigative genetic genealogy deployment.
Second, the Bharatiya Sakshya Adhiniyam 2023 should be amended to establish specific admissibility standards for investigative genetic genealogy evidence, including: expert qualification standards; methodology disclosure obligations; requirements that investigative genetic genealogy leads be confirmed through conventional DNA analysis before forming the basis of conviction; Section 65B certificate requirements adapted to genealogical database outputs; and the right of defence counsel to obtain independent expert review at state expense.
Third, Parliament should enact a dedicated Forensic Genetic Genealogy (Regulation) Act establishing the Genetic Forensics Oversight Board, imposing obligations on genealogical database operators, providing private rights of action and compensation remedies for individuals unlawfully investigated, establishing notification rights for investigated individuals, and providing for periodic review and amendment in light of the Oversight Board’s reports.
7. CONCLUSION
Investigative genetic genealogy possesses genuine investigative potential. Yet its deployment in India without specific statutory authorization, prior judicial oversight, and enforceable reliability standards violates fundamental principles of Indian criminal law. The framework established by the Bharatiya Nagarik Suraksha Sanhita 2023 and the Bharatiya Sakshya Adhiniyam 2023 provides no authorization for investigative genetic genealogy’s core operations. The constitutional jurisprudence of the Supreme Court in Puttaswamy, Selvi, and D.K. Basu establishes that investigative genetic genealogy requires specific statutory foundation, prior judicial authorization, and procedural safeguards. This article has demonstrated these deficiencies and proposed a comprehensive regulatory framework that would bring investigative genetic genealogy within constitutional bounds while preserving its investigative value.
The four-pillar framework; proportionality, purpose limitation, participatory consent, and procedural accountability, provides the normative architecture for this regulatory response. The specific legislative proposals, adapted to Indian constitutional requirements and institutional capacities, constitute an achievable program that Parliament can enact without delay. Without such regulation, investigative genetic genealogy will become entrenched investigative practice before its constitutional implications have been adequately considered, repeating the pattern of unregulated forensic technology deployment that Indian criminal justice scholarship has repeatedly documented. Proactive legislative action is constitutionally mandated and practically urgent.
BIBLIOGRAPHY
CONSTITUTIONAL PROVISIONS
Constitution of India 1950, arts 14, 20(3), 21, 22
PRIMARY LEGISLATION
Bharatiya Nagarik Suraksha Sanhita 2023, No 46 of 2023, ss 53, 53A, 57, 173, 179–182, 185–215, 349
Bharatiya Sakshya Adhiniyam 2023, No 47 of 2023, ss 22–23, 29, 39, 62–65
Bharatiya Nyaya Sanhita 2023, No 45 of 2023, ss 63, 65, 70, 101, 105
CASE LAW
Anuradha Bhasin v Union of India (2020) 3 SCC 637 (SC)
Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal (2020) 7 SCC 1 (SC)
Arnesh Kumar v State of Bihar (2014) 8 SCC 273 (SC)
D K Basu v State of West Bengal (1997) 1 SCC 416 (SC)
E P Royappa v State of Tamil Nadu (1974) 4 SCC 3 (SC)
Justice K S Puttaswamy v Union of India (2017) 10 SCC 1 (SC)
Joginder Kumar v State of Uttar Pradesh (1994) 4 SCC 260 (SC)
Maneka Gandhi v Union of India (1978) 1 SCC 248 (SC)
Rajkumar v State of Madhya Pradesh (2014) 5 SCC 353 (SC)
Santosh Kumar Singh v State (2010) 9 SCC 747 (SC)
Selvi v State of Karnataka (2010) 7 SCC 263 (SC)
State of H P v Jai Lal (1999) 7 SCC 280 (SC)
State of Bihar v J A C Saldanha (1980) 1 SCC 554 (SC)
SECONDARY SOURCES
Kelkar R V, Criminal Procedure (6th edn, Eastern Book Company 2014)
Murphy E, Inside the Cell: The Dark Side of Forensic DNA (Nation Books 2015)
Ramanathan U, “DNA Profiling and the Criminal Justice System in India” (2019) National Law School of India Review 1
Rukmini S, “India’s Broken Forensic Science System” (2012) 47(26) Economic and Political Weekly 12