The Human DNA Profiling Bill, 2012 was introduced in the Parliament of India as an answer to the rising issues in the law courts across India which strictly need the investigation of Human DNA to find out the real culprit and to tackle the problems like to know the real identification of the person. Unfortunately in spite of the urge of the day, the Human DNA Profiling Bill is still pending in the Parliament of India as many people think it may trespass to their privacy.
The 21st century is very advanced. This advancement spreads to every aspect of life such as social, legal, economical, political, cultural etc. But when it comes to legal advancement in the society then it become the real topic of concern as Law is the subject which helps us to run over society in a very systematic and proper way. Law is the subject which helps us in running our society in a very proper way which renders the development of the society and human race. Law bind us in a frame and encourage us to work in very adequate way. If there are no rules and regulation in our society then everyone work like a layman. It’s either a society, a state, a nation, an institution, an association, a company or group all need some rules and regulation to work so it is like very important to have a proper law body in a society. But with the development in the society there is a strong need of new laws to be formed for the betterment of the society and for the old Laws to be amended according to the today’s need of the society. New laws and regulations are made according to the need of the society so as to tackle the new problems. Hence, it is very important for the proper functioning and updation of our Legal system with the upcoming new changes.
DNA evidence was first accepted by the courts in India in 1885. In 2005, the Criminal Code of Procedure was amended to allow for medical practitioner, after authorization from a police officer who is not below the rank of sub-inspector, to examine a person arrested on the charge of committing an offence and with reasonable grounds that an examination of the individual will bring to light evidence regarding the offence. The Human DNA Profiling Billing proposal becomes relevant here. The said Billing proposal was considered in 2007 but was dropped down due to some factor in ethical, moral and legal issues. The Deoxyribose Nucleic Acid (DNA) analysis of body substances is a powerful technology that makes is possible to determine whether the source of origin of one body substance is identical to that of another, and further to establish the biological relationship, if any, between two individuals, living or dead without any doubt. With the objective to enhance protection of people in the society and administration of justice, analysis of DNA found at the scene of crime, of the victim or offender has been used to establish identity in a criminal or civil proceeding and for other specified purposes.
In order to achieve this objective, it will be essential to establish standards for laboratories, staff qualifications, trainings, proficiency testing, collections of body substances, custody trail from collection to reporting and a Data Bank with policies of use and access to information therein, its retention and deletion. DNA Data Bank Manager will supervise, execute and maintain this system and DNA Profiling Board of eminent scientists, administrators. The proposed Legislation, therefore, he banned keeping the above objectives in view. The Human DNA Profiling Bill is to create DNA data centre to profile people accused of serious crimes and unknown deceased is on the anvil. These Human DNA Profiling Centres which store the DNA data samples of the people so the people so that it will become easy to trace the fugitives and criminals. The bill allows DNA profiling for cases of culpable homicide, murder, etc.
DNA analysis makes it feasible to determine whether the source if origin of one body substance is identical to that of another, and to establish the biological relationship, if any, between two individuals. DNA analysis is very important at least for the solution and problems of the cases where there is the strong need of the proper identification of the person. This provision establishes that authorization is also very important for the collection of DNA samples. It defines who can collect samples, creates permitted circumstances where there is the strong need of the proper identification of the person. Though this provision establishes that authorization is also very important for the collection of DNA samples, defines who can collect samples, creates permitted circumstances for collection, and lists material that can be collected, among other things, it does not address how the collected DNA evidence should be handled, and what will happen to the evidence after it is collected and analyzed. These gaps in the provision indicate the need for a more comprehensive legislation regulating the collection, use, analysis and storage of DNA samples, including for crime-related purposes in India. The Bill considers not to build the DNA data centre at only some important cities but in the all the big cities of India and to declare mandatory to every citizen to register their DNA sample.
The initiative to draft a Bill regulating the use of DNA samples for crime-related reasons began in 2003, when the Department of Biotechnology (DoB) established a committee known as the DNA Profiling Advisory Committee to make recommendations for the drafting of the DNA profiling Bill 2006, which eventually became the Human DNA Profiling Bill. The Bill envisages to create a DNA data centre to profile people accused of serious crimes and unknown deceased is under process. The proposal was originally mooted in 2007 but was dropped to factor in ethical, moral and legal issues on the sensitive matter. Crafted by the Department of Biotechnology, it allows Deoxyribose Nucleic Acid (DNA) profiling for cases of culpable homicide, murder, death by negligence, miscarriage, dowry deaths, causing death of new born child, sexual assault, unnatural offences, outraging the modesty of a woman, co-habitation with a woman by deceit, adultery, enticing a married woman with criminal intent, among others.
To regulate the use of Deoxyribose Nucleic Acid (DNA) analysis of body substance profiles and making provision for the establishment of DNA Profiling Board consisting of eminent scientists, administrators, law enforcement officers, etc. to lay down the standards for laboratories, collection of body substances, custody trail from collection to reporting and establishment of a databank and to create policies for use and access to information from such data bank, appointment of the DNA Databank Manager to supervise, execute and maintain the databank, etc. and for matters connected therewith or incidental thereto. Use of DNA profiles, samples and records is very important as all DNA profiles, samples and records shall solely be used for the purpose of facilitating identification of the perpetrators of a specified offence. Provided, that such records or samples may be used to identify victims of accidents, missing persons or for similar purposes. Information stored in the DNA data base system may be accessed by the authorized persons for the purposes of forensic comparison permitted under this Act, administering the DNA data base system and accessing any information contained in the DNA database system by the law enforcement officers or any other persons, as may be prescribed, in accordance with provisions of any law for the time being in force, in quest or inquiry, any other purpose as may be prescribed, provided that nothing contained in this section shall apply to information which may be used to determine the identity of any person. The Bill also includes provision to establish a DNA Profiling Board responsible for 24 functions, including specifying the list of instances for human DNA profiling and the sources of collection, enumerating guidelines for storage and destruction of biological samples, and laying down standards and procedures for establishment and functioning of DNA laboratories and DNA Data Banks. The lack of harmonization and clear policy indicates that there is a need in India for standardizing the collection and use of DNA samples. Although DNA evidence can be useful for solving crimes, the current 2012 draft Bill is missing critical safeguards and technical standards essential to preventing the misuse of DNA and protecting individual rights.
In a country like India which is densely populated there is huge requirement for these type of databases which may help in stopping different types of fraud like Ration card fraud, Voter ID Card fraud, Driving license fraud etc. The database also assists the Indian police to differentiate among criminals and non criminals. Or we can say that DNA database will differentiate between criminals and non-criminals, but DNA evidence is not useful in stopping ration card fraud etc. as it would require that DNA be extracted and authenticated for every instance of service. In 2012, the Department of Forensic Medicine and Toxicology at AFMC Pune proposed to establish a DNA data bank containing profiles of armed forces personnel. In Uttar Pradesh, the government ordered mandatory sampling for DNA fingerprinting of dead bodies. This reflects how much the government of India is concerned about the DNA profiling. It shows the scope of use, collection and storage of DNA profiles in databases that the Bill is silent on.
The preamble of the Bill states that, ‘DNA analysis of body substances is a powerful technology that makes it possible to determine whether the source of origin of one body substance is identical to that of another, and further to establish the biological relationship, if any, between two individuals, living or dead with any doubt.’
This statement ignores the possibility of false matches, cross-contamination, and laboratory error as DNA evidence is only as infallible as the humans collecting, analyzing, and marshalling the evidence. These mistakes are not purely speculative, as cases that have relied on DNA as evidence in India demonstrate that the reliability of DNA evidence is questionable due to collection, analysis, and chain of custody errors. For example, in the Aarushi murder case the forensic expert who testified failed to remember which samples were collected at the scene of the crime. In the French diplomat rape case, the DNA report came out with both negative and positive results; and in the Abhishek rape case the DNA sample had to be re-analyzed after initial analysis did not prove conclusive Yet the Bill does not mandate a set of best practices that could help in minimizing these errors, such as defining what profiling system will be used nationally, and defining specific security measures that must be taken by DNA laboratories – all of which are currently left to be determined by the DNA board.
Many other problems and concerns that are raised with regard to the Bill are both intrinsic, including problems with effectiveness of achieving the set objectives, and extrinsic, including concerns with the fundamental principles of the Bill. For example, the use of DNA material as evidence and the subsequent creation of a DNA database can be useful for solving crimes when the database contains DNA profiles from the DNA samples only from crime scenes, and is restricted to DNA profiles from individual who might be repeat offenders. If a wide range of DNA profiles are added to the database, the effectiveness of the database decreases, and the likelihood of a false match increases as the ability to correctly identify a criminal depends on the number of crime scene DNA profiles on the database, and the number of false matches increases that occur is proportional to the number of comparisons made (more comparisons = more false matches). The DNA profile databases shall serve as useful tools in solving crime but on the other hand, the DNA profile of a person can reveal very personal information about the individual medical history, family history and so on. Therefore, a more comprehensive legislation regulating the collection, use, analysis and storage of DNA samples needs to be included in the draft Human DNA Profiling Bill.
The other main concerns with the Bill include access controls to the database and rights of the individual. To quote, the Bill does not require that a court order be issued for access to a DNA profile, and instead leaves it in the hand of the DNA bank manager to determine if communication of information relating to a match to a court, tribunal, law enforcement agency, or DNA laboratory is appropriate. Additionally, the Data Bank Manager is empowered to grant access to any information on the database to any person or class of persons that he/she considers appropriate for the purposes of proper operation and maintenance or for training purposes. The low standards for access that are found in the Bill are worrisome as the possibility for tampering of evidence and analysis is increased.
The Bill also lacks important provisions that would be necessary to protect the rights of an individual. For example, individuals are not permitted a private cause of action for the unlawful collection, use, or retention of DNA, and individuals do not have the right to access their own information stored on the database. These are significant gaps in the proposed legislation as it restricts the rights of the individual.
So we can easily analysis how much crucial the Human DNA profiling is at this present time for our society because it makes tracing the fugitives and criminals easier and allows DNA profiling for cases of culpable homicide, murder, etc. DNA analysis makes it feasible to determine whether the source if origin of one body substance is identical to that of another, and to establish the biological relationship, if any, b/w two individuals. DNA analysis is very important at least for the solution and problems of the cases where there is the strong need of the proper identification of the person. But at the other hand people don’t accept this because many found this as a threat to their privacy.
Submitted by:
NIASHANT SIROHI
B.A LL.B (HONS)
SEM 3RD
ALIGARH MUSLIM UNIVERSITY ,MURSIDABAD