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ESTABLISHMENT OF DNA DATABANK IN INDIA: A LEGAL ANALYSIS

Section: A

Category: Research Paper

Paper Code: RP-RS-07

Page Number: 50 - 64

Date of Publication: February 10, 2021

Citation: Dr. Ranjit Sil, Establishment of DNA Data Bank in India: A Legal Analysis, 1, AIJACLA, 50, 50-64, (2021).

Details Of Author(s):

Dr. Ranjit Sil, Assistant Professor, Department Of Law, North-Eastern Hill University, Shillong, Meghalaya, 7939022


ABSTRACT In India, the crime rate is on the rise but the rate of conviction is very low in comparison. It is revealed from NCRB data. The conventional method of crime detection and interrogation by the investigating officers has been proved non-satisfactory because of such a low conviction rate. It is now high time to realize whether our country, when we are talking about progress and ‘India in the making and shining’ slogan, how far we have progressed in the criminal administration of the justice system. The present Union Government has taken an initiative to pass an Act for which Loksabha has passed the DNA Technology (Use and Application) Regulation Bill, 2019. Though already in the past India has tried to pass the Human DNA Profiling Bill, with its subsequent changes and modification, to establish a DNA Data bank, which some other countries in the world have already established, for identification of accused and DNA matching. The scientific community globally has accepted the use and benefit of storing DNA material but India is new to face the various issues and challenges for the same. DNA is the forensic scientific material having the capacity to reveal the genetic information about an individual from coded DNA part. Though the DNA Technology (Use and Application) Regulation Act, 2019 has made some provisions for addressing the issue of privacy matter of the individual and the management and regulation of DNA databank, the Bill lacks transparency on many aspects and practicality concerning its application and making public trust especially, concerning the operation of the DNA Board and sharing of genetic information internationally. Genewatch, U.K., a participant in the Forensic Genetic Policy Initiative (FGPI), dealing with national and international policies and laws regarding forensic DNA databases, discussed the issues relating to the Human DNA Profiling Bill and highlighted the drawbacks in the Indian side, in the DNA (Use and Application) Regulation Bill, 2019, along with its recommendation for improvement on such Bill, lots of issues as to privacy protection of the individual; sharing of the genetic information internationally, the mode of operation and functionality of the DNA Board; Bio-surveillance; Safeguards as to the collection and retention of DNA materials and samples; Laboratory quality assurance and accreditation; the need for privacy and data protection law; before the establishment of such DNA databank. The comparison between the UK and other countries who have already settled all such issues, particularly, U.K., Ireland, has been made between their laws and policies with the proposed Bill, 2019 of India. Of course Indian Judiciary is facing lots of challenges before passing any order and judgment as to the compulsory DNA profiling of the accused in crime and some civil matters, in a situation of having no proper legislation, lots of judicial decisions have developed guidelines on it. Criminal Procedure Code, 1973, Indian Evidence Act, 1872, and Court cases are the existing legal guidelines but still India needs proper legislation and DNA data banking to fight the ever-increasing crimes for delivering justice to society. But the caution before establishing DNA data banking all those issues, especially Human Rights aspects, Rights of the innocents as well as the accused, must be protected. Privacy and Data Protection Law should be enacted before the establishment of a DNA databank. Otherwise, this would be a progressive step for the country to go forward and develop.

KEYWORDS Constitutional Validity, DNA Databank, DNA Profiling, Forensic Genetic Policy Initiative(FGPI), Genetic Information, Judicial challenges, Quality Laboratory Assurance and Accreditation, Right to privacy, Bio-Surveillance, and 13 CODIS loc



INTRODUCTION

With the outbreak of Novel Coronavirus and the worldwide crisis of health services, the urgency of the Indian Parliament to pass and enact the DNA Database Bill and Act, pose a serious question that needs to be discussed and debated, is whether lots of other issues connected with the establishment of DNA Data Base and Bank should have been addressed beforehand before taking such initiative. Unlike some other Countries India so far does not have such a National DNA Database. According to US Interpol’s Global DNA profiling Survey Results 2016, as many as 69 Countries have a National DNA database including the US, Canada, and China. Together the Countries hold genetic information of at least 35,413,155 individuals. India is among the 84 Countries that use DNA profiling in criminal investigations, but do not store the DNA information in a centralized database. According to Interpol’s 2008 Survey, India has so far used Human Identification Software (HID) of a national design for the operation of regional (State) databases. The DNA profiling method was first developed in 1985 specifically for forensic use and first applied in a rape and murder investigation of two young girls in a village in the UK. In 1995, the UK became the first country to establish a Forensic National DNA database. Initially, legislation was introduced in 2001, as part of the Criminal Justice and Police Act of 2001, under former UK Prime Minister Tony Blair, allowing DNA profiles to be kept on the database even when a person was acquitted of a crime. The law was amended again in April 2003 to allow DNA to be taken as soon as a person is arrested rather than waiting for them to be charged with an offense. These changes to the law, overturning the presumption of innocence until proven guilty, allowed for DNA profiles of over 1 million innocent people to be retained on what was previously a criminal DNA database.[1] This legislation came into effect in England and Wales in April 2004. Forensic DNA databases are now well established in many countries in the World.[2]

In India, according to NCRB[3] data over 3000000 crimes directly affecting people or property were reported in 2016, but conviction rates remained at about 30%. The President of India recently promulgated an ordinance that prescribes the punishment of the death penalty in case of rape of minor girls. Following the line of conviction securing measures and ensuring the establishment of guilt, now discussion and debate is on as regards to the establishment of a DNA database but it is also imperative that a quality system is in place before starting any such database as any DNA sample from crime scenes could be contaminated, wrongly analyzed, mixed up, matched only by chances or planted. In India, although 96% of sexual offenses are charge-sheeted, the rate of conviction for rape in 2016 was a trifle, 25% as per NCRB data. So DNA evidence could be particularly crucial in such cases. DNA profiling has both civil and criminal uses, especially having corroborative value, helping in determining identification purposes, in the research field to find out the genetic flaws and to cure genetic diseases, to match tissues of donor and recipient in case of organ donation. With the advent of the newer methods of profiling and analysis, the usage of DNA in various other fields will grow with time that necessitates the discussion with expert groups. Keeping in view the possibility of its abuse and need for stringent safeguards, as prerequisite steps before establishing DNA databank and setting up management issues. It also demands reviewing of the plans and management how other societies are planning to deal with it, particularly, sharing of information and maintaining transparency issues in a global world now in an era of information technology and artificial intelligence, addressing properly the international human rights aspects attached to this technology.


CONSTITUTIONAL AND LEGAL ASPECTS OF DNA PROFILING AND DATABASE IN INDIA

Evidence is very crucial for ruling out suspects, finding criminals, and proving their guilt. Major advances in forensics and investigation practice, have made it possible to dig up various types of evidence that are admissible in court and bring police closer to catching criminals. Examples of the most incriminating types of evidence are Fingerprint, Blood, Hair, Skin, Witness Testimony, Written Documents, Semen, Shoe Prints, Videotapes/Photographs, and Ballistics etc. Among those Witness Testimony is dependent on the credibility of the witness, which can be the deciding factor in a case. Generally, forensic evidences are considered as scientific evidence that is beyond the scope of knowledge that judges and juries possess, and therefore, when the Court is convinced that such scientific evidences are required to be introduced before the court or trial as factual evidence, the Court may require the opinion of an expert on the relevant point.[4]Scientific evidence on earth concerning a trial means evidence based on knowledge that has been developed by using the scientific method, the basis for which has been hypothesized, tested, and accepted within the scientific community. In India the legal position as regards the application of forensic technique has to pass through a three-fold litmus test, Firstly, the Constitutional validity of such test, Secondly, the evidentiary value of the forensic information obtained from the expert, and Finally, in the absence of any concrete legislation, judicial stand on admissibility of DNA forensics. At present in India Sections 53, 53A, 54, 164A, 174, 176, 291, 293 of the Code of Criminal Procedure, 1973; Sections 9, 45, 46, 47, 51 of the Indian Evidence Act, 1872; Article 51A (h)[5] and (j)[6], Article 20(3), Article 21of the Constitution of India, govern science and technology issues involved in forensic science in the realm of criminal and civil administration of justice matters to some extent. It should be noted that the Explanation[7] to Sections 53,54 and 54 of the Code of Cr. P. C. 1973 was amended in 2005 to clarify the scope of medical examination of the accused, especially concerning the extraction of bodily substances, and in particular, to use DNA profile techniques. Article 20(3) of the Constitution of India declares that no person accused of an offense shall be compelled to be a witness against himself. This provision of law embodies the principle of protection against compulsion of self-incrimination which is one of the fundamental principles of criminal jurisprudence. Article 21 of the Constitution of India confers on every person the fundamental right to life and personal liberty which has further become a source of many other rights through judicial interpretation, like the right to privacy, right to dignity of life.


INDIAN JUDICIARY ON FORENSIC SCIENCE AND DNA EVIDENCES

Forensic Science and Scientific evidence within its ambit with the modern development of science and technology has a tremendous impact on the investigation process of crime and plays a vital role in the criminal justice delivery system. After the emergence of DNA technology as the latest method of forensic science, it provides a tremendous amount of information to the investigating officers that enable them to find out the criminal from evidence left at the crime scene. The foremost challenge before the court was to decide the constitutional validity of submitting specimens for forensic examination under Article 20(3) of the Constitution of India. The answer was given in State of Bombay vs Kathikalu[8] where it was held that “giving the specimen and information for forensic examination is just like providing relevant facts within the meaning of Sections 9 and 11 of the Indian Evidence Act, 1872 and it does not fall under the parameter of evidence against oneself”. Section 73 of the Indian Evidence Act empowers the Court to direct any person including an accused to allow his fingerprint impression to be taken. The Supreme Court has also held that being compelled to give fingerprints does not violate the constitutional safeguards given under Article 20(3) of the Constitution of India. In Selvi & Ors. vs State of Karnataka & Anr.[9] “The Supreme Court questioned the legitimacy of the involuntary administration of certain scientific techniques for the purpose investigation in criminal cases.” As regards the application of DNA profiling two popular cases namely, Santosh Kumar Singh vs State[10]where the rape and murder of a law student, Priyadarshini Mattoo by Santosh Kumar Singh, son of an IPS officer, became a piece of sensational news after he was acquitted by a trial court in 1999 and subsequently, Delhi High Court convicted and sentenced him to death based on DNA evidence found on the undergarments of the victim, although the Supreme Court commuted his sentence to life imprisonment; and another Surendra Koli vs State of U.P.[11] where DNA test was used to identify dead bodies of victims. In another case Sushil Sharma vs State (NCT of Delhi),[12]popularly known as the Tandoor Murder case, Forensic Scientist played a pivotal role in unraveling the mystifies of the crime. The Delhi Gang Rape Case or the Nirbhaya Case or the Damini Case which took place in 2013 is another set of examples where the Hon’ble Supreme Court accepted the admissibility of DNA testing. All the accused were sentenced to death based on the dying declaration of the victim and DNA evidence. The call for DNA test on civil cases is generally made to settle the paternity issue involved in cases of divorce, maintenance, inheritance and succession, etc. For determining the legitimacy of a child born during wedlock, the presumption under the relevant provision of law[13] is conclusive, provided the only ground to rebut this presumption is non-access of the husband. The Supreme Court observed that “the standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff’s husband”. In Goutam Kundu vs State of West Bengal[14], this Court after considering an early three-judge Bench decision in Dukhtar Jahan vs Mohammed Farooq,[15] held that “this presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities.” However, subsequently a full Bench of the Supreme Court in Sharda vs Dharmpal,[16]considered the power of a matrimonial court to order such test and clarified that “Goutam Kundu case (supra) is not the authority for the proposition that under no circumstances the court can direct that blood test be conducted. It, having regard to the future of the child has of course, sounded a note of caution as regard mechanical passing of such order”. The Court summed up three significant conclusions- “a matrimonial court has the power to order a person to undergo medical test; Passing of such order by the court would not be in violation of the right to personal liberty under Article 21 of the Constitution of India; However, the court should use such a power if the applicant has a strong prima facie case and there is sufficient material before the court; If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against the respondent”. In one another case,[17] the Supreme Court took an approach, considering the use of DNA test is extremely delicate and sensitive issue, “that when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether a just decision in the matter, DNA is eminently needed. The Court has to consider diverse aspects, the presumption under Section 112 of the Indian Evidence Act, Pros and Cons such order and test of ‘eminent need’ whether the circumstances rending the court to reach to the truth is not possible without the use of DNA test”. Worthy to mention the judgment of the Delhi High in Shri Rohit Shekhar vs Shri Narayan Dutt Tiwari and Anr, in which case the court has gone a step further and ordered DNA tests on the respondent, a third party to the marriage, primarily recognizing from various international covenants, the right of a child to know his biological antecedents. In this case, the Court, with due caution and respecting the judgments of the Supreme Court[18], justified the reason and prima facie case for ordering the DNA test. So it may be inferred, the question, whether a DNA analysis can be legitimately directed or not is perplexing. Lots of reason are there, of course, for the reluctance of the Court to vacillate, mainly lack of multi-professional and interdisciplinary linkage and coordination, over-emphasis upon the traditional methods of interrogation, poorly trained staff, inappropriate numbers of laboratories, general apathy towards adopting modern technological advancement and of course, budgetary constrain are the main reasons for the Country’s lagging in getting the full utility of the Forensic and Scientific evidences to solve the critical criminal cases and delivering justice to the vast population of the country where crime is on the escalation in comparison to poor conviction rate. In absence of any proper legislation, the Indian Judiciary has proved its vision in many cases, though the number is very minimum, to reach the truth and unravel the crimes with the help of Forensic evidences through the logic of corroboration and circumstantial evidence. Therefore, appropriate legislation/s is/are the need of the hour to assist the judiciary in successfully administering both civil and criminal justice delivery for the society. The significant paradigms of DNA profiling cannot be left alone to the courts to adjudicate with the temporary tailor-made solution. The administration of justice now needs the assimilation of the scientific advancement of genetic profiling and developed procedural techniques for harnessing the emerging juridical challenges.


DNA DATA BANK IN INDIA ISSUES AND CHALLENGES

India’s Human DNA profiling Bill 2015[19] proposes to set up a National DNA database of criminals. The Centre for DNA Fingerprinting and Diagnostics (CDFD) but the said draft bill was criticized by the international activist groups[20]. They said that Bill 2015 does not have enough safeguards built into it.[21]In the draft Bill 2015, privacy concerns have not been answered. The definition of victim, offender, and suspects expands the reach of this Bill to a broad range of potentially innocent individuals, while the schedule and definition of ‘volunteers’ sweep a broad range of categories of innocent citizens into its purview.

The present Union Government is on the move to set up DNA Bank to store citizens’ genetic information and therefore, Loksabha passed a Bill[22] in July and referred the Bill to the Parliamentary Standing Committee on Science and Technology, Environment & Forests. The objective of the Bill is to establish the National DNA Data Bank and its regional databases to store genetic information collected from crime scenes as well as Victim’s body during criminal and civil investigations. It also wants to establish a DNA Regulatory Board for regulation and control of DNA data collection and storage. In 2007, the Department of Biotechnology, Ministry of Science and Technology, Government of India, funded the Centre for DNA Fingerprinting and Diagnostics, an autonomous organization to take an initiative and as a result, the DNA Profiling Bill was drafted by the said center with an object to legalize the collection and analysis of DNA samples for forensic purposes and the creation of a national database but the draft Bill lacks about privacy issues and remained silent about safeguards. The Bill was further developed by an expert committee and was scheduled to be submitted to the Indian Parliament in August 2018, but was not adopted. In 2012, the NGO Lokniti filed a PIL[23] in Supreme Court requesting the establishment of a DNA database to trace unidentified bodies and missing children, arguing that the right to be identified is also a part of the right to dignity as an integral part of the right to life.[24] The petitioner submitted that “establishment of the identity of bodies is essential for respectful disposal of unidentified dead bodies and missing persons who are subsequently found dead and with the advent of the modern scientific method, it is obligatory on the part of the state to avail requisite infrastructure so that a DNA databank is created”. The bench comprising Justices Dipak Mishra and V. Gopala Gowda passed the order on this PIL[25], seeking the center to think over it seriously to make the DNA database functional to fulfill the voice and philosophy of the 21st century. But Gene watch, UK[26] Comments on the DNA Technology (Use and Application) Regulation Bill 2019. The Forensic Genetics Policy Initiative (FGPI) in its reports,[27] ‘Establishing Best Practices for Forensic DNA Databases’ made a comparison with India’s DNA Bill and reveals several important issues as follows:


The Multiple roles of the DNA Regulatory Board-

According to Genewatch UK observation, unlike the National DNA Database Strategy Board in the UK, the DNA Regulatory Board in India having confusing status as regards to the management and governance role because of multiple regulatory roles having merged onto one body which has the effect of removing the decisions of the Board from proper independent scrutiny and limiting the rights of people to object to its decisions. Such oversight power of the boards is important for the governance role of DNA databases, helping to ensure that they contribute effectively to the criminal justice system and meet ethical and regulatory requirements, for maintaining public trust and political accountability.

Comparing to the UK counterpart, The national DNA database (NDNAD) Strategy Board which oversees the UK database, is scrutinized by the NDNAD Ethics Board which provides independent advice on ethical issues to ministers and the NDNAD Board; the Biometric Commissioner whose role is to keep under review the retention and use by the police of DNA samples, DNA profiles and fingerprints; monitoring whether biological samples and DNA profiles are being destroyed and removed from the databases when the law requires; the Forensic Regulator, who monitors compliance with quality assurance standards, investigates errors and prepares guidance on issues such as the avoidance of contaminations, leading to miscarriage of justice. The Information Commissioners Office (ICO) ensures compliance with data protection (privacy) law and provides access to an independent mechanism for complaints from individuals about breaches of their privacy.

Therefore, in India’s Bill, these multiple roles are clubbed into one Body which is practically contrary to the best practices for maintaining ethics and accountability, public trust also. Contradictorily, Board’s decision in India’s Bill is removed from judicial scrutiny.[28]

So, Genewatch UK is of the view that to be consistent with the best practices, the management and regulatory roles of the Board should be separated. A forensic regulator is established with powers to scrutinize DNA sample collection from crime scenes as well as the role of laboratories; A mechanism to be established to ensure privacy protection and maintaining public trust by scrutinizing the proposal for destroying biological samples and removing DNA profiles from the database; to ensure privacy rights by suitable legislative measures; An independent Ethics body is to be established to provide advice to the Board.


The use of DNA database for Civil Disputes should be prohibited-

The recommendation is consistent with the best practices for forensic genetic policy suggest for the deletion from the Bill, Article 34(e) and the schedule as this is one of the most worrying aspects of the Bill which implies that persons involved in civil disputes (mostly paternity issues) should have their DNA profiles added to the proposed DNA database. This is without having any justification as it intervenes in human rights. In such civil suits, DNA may be required only for the specific purpose, and samples collected are only of relevance to the specific case before the Courts and not to any future criminal cases. Therefore, the retention of such DNA profiles on the database is completely out of relevance.

The recommendation further suggests the deletion of Article 34(f) to protect human rights by limiting the power of the state or others using the database for purposes such as surveillance (tracking individuals or identifying and tracking their relatives using DNA or exposing non-paternity within families) or illegal access by criminals or corrupt official/police who want to misuse this information for blackmail. This would breach public trust and a serious threat to human rights issues and violation of the right to privacy as a fundamental constitutional right and unguided expansion of arbitrariness in the hand of the executive.


International Data sharing should require safeguards-

The Bill 2019 allows the sharing of DNA profiles and information regarding matches, identification of suspects and missing persons, internationally but the standards required to be maintained as per the ‘Best Practices Standards’ is omitted in the said provision of the Bill[29]


Safeguards as regard to collection and retention of DNA materials and samples-

The definition of the DNA profile in Article 2(1)(viii) of the Bill 2019 is not at per with the ‘Best Practices Standards’ because as per the commonly used international standards DNA profile should be restricted to non-coding DNA only to prevent the storage of other private genetic information especially relating to a medical condition. Ireland has legislated a law[30] which states that “DNA profile, concerning a person, means information comprising a set of identifying characteristics of the non-coding part of DNA derived from an examination and analysis of a sample of biological material that is identifiable as relating to the person and that is capable of comparison with similar information derived from an examination and analysis of another sample of biological material to determine whether or not that other sample could relate to that person…[31]

The Bill allows the collection of DNA materials without consent from two categories of persons, 1) persons suspected of any offense with the order of a magistrate and 2) persons suspected of more serious offenses which is punishable with death or imprisonment for a term exceeding seven years, without an order of a magistrate.[32] There is as such no international consensus on when DNA will be collected from suspects and convicted persons but some specific safeguards are there, one of the important safeguards is restricting the categories of crime for which DNA can be taken and that should be specified in legislation. Best practice requires greater public consultation and debate on whose DNA profile should be added to the DNA database without consent. And the term suspect should be clearly defined in the Bill to avoid arbitrariness of the executive.

The Bill allows DNA samples to be collected from victims of crime and volunteers with their consent. The Genewatch recommends that the Bill should mention the term ‘informed consent’ instead of ‘consent’ because giving consent requires information so that volunteers can make an informed decision. This practice is consistent with the international instrument, the Declaration of Helsinki.[33] Article 23[34] of The DNA Technology (Use and Application) Regulation Bill, 2019 allows refusal of consent to be overruled as it allows a magistrate to overrule the descent of a person which practically nullifies the meaning of consent and inconsistent with international standards and the Best Practices, a breach of human rights as well. Similarly, Article 22(2) allows refusal of consent to be overruled in the case of minors. The term ‘disabled persons’ used in Article 31(3) is incorrectly used instead of what is meant for that “persons physically or mentally incapable of giving consent” and this undermines the right of disabled persons. The Best Practice internationally is not to load volunteer’s DNA profiles onto a database at all, but to use them only in the context of the specific investigation for which they have been collected. The same view is subscribed by the National DNA Database Ethics Group, UK, which recommended in 2008 that volunteers' DNA profiles should not be loaded onto the DNA database and should be destroyed after they are used. As regard to the removal of DNA profiles from the DNA Databank, The DNA Technology (Use and Application) Regulation Bill, 2019 makes provision for that but the effectiveness of its implementation process is not clear, as recommended by Genewatch, UK, that to comply with the Best Practices, the Bill should be amended to specify that the retention of DNA profile after a case is dropped or a person is acquitted is unlawful; They suggested more than an independent oversight mechanism is put in place to assess whether the removal process is working and to publish an annual report on this; Individuals are given a right in law to obtain information regarding whether their DNA profile is held and to petition for its removal with a right to appeal to an independent body. Similar scope is there in the UK where the overall implementation of the removals policy is scrutinized by the independent Biometrics Commissioner, and individuals may seek information and deletion of their DNA profiles via the Data Protection Act, with a right of appeal to the Information Commissioner. The same is the recommendation as regards the destruction of samples. Article 20(2) of the Bill,[35] though, an important safeguard to protect privacy, yet to be consistent with the Best Practices Standard, it is recommended that an independent body has oversight over whether biological samples are being destroyed following the legislation; and the Bill makes it explicit that it is unlawful to retain samples from suspects after the disposal of the case.


Segregation of the missing persons’ DNA database from the criminal DNA database-

The Best Practice includes “storing DNA profiles from missing persons and their relatives in databases that are kept separately from criminal DNA databases and restricting searches to finding the missing person, not seeking to identify matches with DNA profiles from crime scenes”. Therefore, to be consistent with best practice, Genewatch, UK, recommend that: A separate Missing Persons’ DNA database is set up, rather than merely a different index in the criminal DNA Databank; Comparisons of DNA profiles in this database and profiles on the criminal DNA database (including in the crime scene index) are not allowed; A definition of “missing person”[36] is included in the Bill; Provisions are made to automatically delete the DNA profiles of the missing person and his/her relatives at the end of an investigation.


Forensic regulation needs to be extended beyond laboratory quality assurance-

Article 24 of the Bill[37] provides a right to the accused to prefer an appeal to the Court if he/she feels that the DNA sample collected from his/her body has been contaminated. This is a welcome provision but it is unclear how an accused person might become aware that their sample, or those from the crime scene, have been contaminated, or obtain evidence of this to convince the court. Therefore, the Bill should ensure that Laboratories and police should be obliged to notify the accused if they have reason to believe contamination has occurred. The Bill incorporates important provisions requiring the accreditation of laboratories (Chapter III), but it is silent on the issue of crime scene analysis and the chain of custody from the crime scene to the laboratories.


Need for a relevant privacy or data protection Act-

To comply with the Best Practice, a relevant privacy or data protection law is needed. This would provide a mechanism for individuals to enforce their rights and also for the provisions on the protection of information (Chapter VI) to be independently regulated and enforced.


CONCLUSION AND SUGGESTIONS

DNA is a strong boon in the criminal administration of justice. Hence no doubt it should be an essential part of the Indian Judiciary. The Indian Judiciary has changed in the approach and its attitude in appreciating forensic evidences in Criminal cases. The influence of forensic science in India has been to such an extent that the Malimath Committee in its report asked for certain changes in the Criminal Procedure Code by way of amendment to accommodate the principles of Forensic Science like Section 313 of the Criminal Procedure Code has been suggested to be amended to draw an adverse inference against the accused if he fails to answer any relevant material against him; to enact a specific law giving guidelines to the police setting uniform standards for obtaining genetic information and creating adequate safeguards to prevent misuse of the same; to establish more well-equipped laboratories to handle DNA samples and pieces of evidence, and to establish a national DNA database. In the past forensic science has been always treated as a neglected discipline it has been sidelined as a part of the law enforcement and justice delivery system. Among other factors responsible for undermining the value and admissibility of forensic science are the ignorance of the investigating officers in handling the crime scene, the way of collecting pieces of evidence from the scene, improper documentation, and contamination of the material evidences, lack of proper education and training of the police personnel. The National Draft Policy on Criminal Justice Reforms has suggested “that Indian Evidence Act needs to be amended to make scientific evidence admissible as ‘substantive evidence’ rather than ‘opinion evidence’ and establish its probative value, depending on the sophistication of the concerned scientific discipline”. In an interview to Firstpost (12th October 2012) with G.V.Rao, DNA analyst and former chief staff scientist at the Hyderabad-based Centre For DNA Fingerprinting and Diagnostics discussed critical issues facing the DNA testing in India with the DNA Profiling Bill. G.V.Rao stated when asked, Is the technology being responsibly used to solve crimes? “….in my experience, I have observed that we could also be guilty of giving false-positive results and sending innocents behind bars.”.[38] Each DNA Lab is following different procedures for conducting the tests. No proper records of the test conducted are being maintained for production in a court of law for its inspection. The chain of custody which is a very crucial procedural aspect to be followed is not being practiced in Indian DNA laboratories.

Regarding the accuracy of the DNA technology in forensic, the scientific community globally accepted it as a standard for human identification from biological evidence. But emphasis is put on proper collection, preservation, documentation, analysis of evidence materials, and transparency, for that stringent norms are required to be complied with in every step. Then DNA profiling is the most scientific crime-fighting tool for the law enforcement agencies, provided law enforcement agencies and Crime investigation officers are properly trained and other challenges such as lack of awareness and clarity about the use of DNA forensic, Shoddy Crime Scene Management, inadequate forensic infrastructure and over-reliance of Criminal Justice Delivery System on conventional evidence, etc. are properly addressed beforehand with the right policy and legislative measures and infrastructural support. All DNA Laboratories must be accredited as per the international standards. Before the establishment of a DNA databank, the Government has an enormous responsibility of ensuring a quality system to prevent miscarriage of justice and to safeguard the privacy of individuals. Some welcoming measures have been undertaken under the Bill,[39] but before setting up any database, privacy issues should first be addressed. A mechanism prescribed in the Bill protects the right to privacy by permitting for processing of DNA samples only 13 CODIS loci which will prevent misuse of DNA beyond the identification of a particular person. The strict compliance of 13 CODIS loci will discard the genetic traits getting revealed. But the said draft Bill states that no legal proceedings can be initiated against the Union Government or any member of the Board of the DNA National Data Bank for any action which is done in ‘good faith’. However, what constitutes good faith is unclear yet, which absolves the Board or the Government of any responsibility in case of a security breach. Most importantly, as discussed above the comparison and drawbacks in the said Bill done by the Genewatch, UK, the functionality of the Board which is overburdened, clubbed all functions generally done by multiple bodies in some other countries, together in the single authority is questionable as regard to maintain the transparency and reposing confidence among the public towards its impartiality; another important issue is privacy and confidentiality. Particularly concerned about ‘bio-surveillance’ which may extend beyond the State to anyone who can invade the system and obtain access to an individual’s DNA profile. This might include organized criminal or terrorist groups, or anyone seeking to track down an individual. The Union Government should immediately fix all these technical issues along with privacy and human rights aspects of citizens before passing such Bill as an Act. I Hope India will shine in a positive direction and grow with less crime and good governance.


[1] Williams R, Johnson & P, Martin P., Genetic information and crime investigation, EJFR (2004), The Wellcome Trust, (Oct. 2020, 28, 09:15 AM), https://www. dur.ac.uk/resources/sass/Williams_Johnson_Martin_NDNAD_ report_2004.pdf. Google Scholar. [2] NDNAD, the first government database set up by the UK in 1995 followed by New Zealand, FNAEG (Fichier National Automalise’des Empereintes Geneliques) set up by France in 1998 and CODIS (Combined DNA index System) database organized by FBI in USA whisch was originally intended for Sex offenders and later on extended to include almost any criminal offenders. [3] National Crime Record Bureau. [4] Indian Evidence Act,1872 Sec. 45. [5] Art. 51A(h) of The Constitution of India says that it shall be the duty of every citizen of India to develop the scientific temper, humanism and the spirit of inquiry and reform. [6] Art. 51A(j) of The Constitution of India says that it shall be the duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. [7] Explanation (a) ,Sec. 53, Cr.P.C, 1973- “examination” shall include the examination of blood, stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case. [8] State of Bombay v. Kathikalu AIR 1961 SC 1808. [9] Selvi & Ors. v. State of Karnataka & Anr.AIR 2010 SC 1974 -In this case the Court held that Brain mapping and Polygraph tests were inconclusive and thus their compulsory usage in a criminal investigation would be unconstitutional. [10] Santosh Kumar Singh v. State (2010)7 SCC 263. [11] Surendra Koli v. State of U.P. (2011) 4 SCC 80. [12] Sushil Sharma v. State (NCT of Delhi) (2014) 4 SCC 317, -Even in Shiney Ahuja Rape Case, during the trial the maid whom the Bollywood actor had allegedly raped, turned hostile and claimed she was not raped, Ahuja was convicted nonetheless as DNA samples taken from the woman’s private parts matched his DNA sample that was taken. [13] Indian Evidence Act, 1872 Sec. 112. [14] Goutam Kundu v. State of West Bengal (1993) 3 SCC 418. [15] Dukhtar Jahan v. Mohammed Farooq (1987) 1 SCC 624. [16] Sharda v. Dharmpal (2003) 4 SCC 493. [17] Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and Another, (2010) 8 SCC 633. [18] Supra note 16, 17. [19] Human DNA profiling Bill 2015, -The draft has been drawn up by the Department of Biotechnology in association with an autonomous institution. [20] Genewatch, UK; Council for Responsible Genetics, USA; and The Forensic Genetics Policy Initiative(FGPI). [21] Sharon Fernandes Times Of India, TNN, Aug 2, 2015. [22] The DNA Technology (Use and Application) Regulation Bill, 2019. [23] Lokniti Foundation v. Union of India, Writ Petition(Civil) No.491 of 2012. [24] Constitution of India 1950, Art. 21. [25] Supra note 22. [26] Genewatch, UK is a participant in the Forensic Genetic Policy Initiative (FGPI), dealing with national and international policies, debates and laws regarding forensic DNA databases, provided expert evidence on DNA databases to the European Court of Human Rights and to the British Parliament. Genewatch, UK alongwith Council for Responsible Genetics visited India in September 2012 to discuss the issues relating to Human DNA Profiling Bill [27] Setting Human Rights Standards for DNA Databases Worldwide, Forensic Genetics Policy Initiative,( Oct. 2020, 30, 07:15 PM), http://dnapolicyinitiative.org/report [28] Art. 57 of the Bill, No Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Board is empowered by or under this Act to determine. [29] The DNA Technology (Use and Application) Regulation Bill, 2019 Sec. 30. [30] Criminal Justice (Forensic Evidence and DNA Database System) Act 2014, Ireland. [31] Ibid. [32] The DNA Technology (Use and Application) Regulation Bill, 2019 Art. 21. [33] WMA Declaration of Helsinki - Ethical Principles for Medical Research Involving Human Subjects, (Nov. 2020, 15, 03:04 PM), https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-researchinvolving-human-subjects/ [34] Provided that before collecting bodily substances for DNA testing of a victim or a person reasonably suspected of being a victim who is alive, or a relative of a missing person, or a minor or a disabled person, written consent of such victim or such relative or the parent or guardian of such minor or disabled person shall be obtained and, in case of refusal, the person investigating the case may make an application to the Magistrate having jurisdiction, for obtaining such bodily substances and the Magistrate, if he is satisfied that there is reasonable cause for taking the bodily substances from such person, order for taking of bodily substances from that person. [35] Specifies that: The DNA laboratory shall, after deriving the DNA profile and depositing it with the DNA Data Bank, — (a) return the biological sample or remaining material for its preservation to the investigating officer in a criminal case till the disposal of the case or the order of the court; and (b) in all other cases, destroy the biological sample or remaining material and intimate the person concerned. [36] Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 - Ireland uses the following definition: missing person means a person who, whether before or after the commencement of this section, is observed to be missing from his or her normal patterns of life, in relation to whom those persons who are likely to have heard from the person are unaware of the whereabouts of the person and that the circumstances of the person being missing raises concerns for his or her safety and well-being. [37] States: If the trial court is satisfied with the plea of the accused person that the bodily substances taken from such person or collected from the place of occurrence of crime had been contaminated, the court may direct the taking of fresh bodily substances for re-examination. [38] As per his version, other major flaws are lack of standard, guidelines, accreditation, proficiency testing of DNA Laboratories and its experts. [39] These includes DNA profiling would be used only for identification purpose not for any other purpose; No bodily substance would be taken from anyone without the previous consent in writing subject to exception in case of persons punishable with death or a sentence of more than seven years; any under trial may request the trial court for another DNA testing if he/she satisfies the court that the previous DNA samples could have been contaminated and hence could not be relied upon.

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VINEETA SHARMA V. RAKESH SHARMA

Section: D Category: Case Commentary Paper Code: CC-NC-01 Page Number: 458 - 460 Date of Publication: February 10, 2021 Citation: Namrata Chakrabarty, Vineeta Sharma v. Rakesh Sharma, 1, AIJACLA, 458