DNA stands for deoxyribonucleic acid, the strands of identity that
living beings receive from their ancestors. Outside of identical
twins, no two people have the same DNA pattern.
In 1987 the DNA fingerprinting was utilized as
a tool for criminal investigation, to establish blood relations and
trace medical history.
Investigators would find "anonymous DNA" at the crime scene and
compare it with the DNA of suspects for possible matches.
investigator would generally use a swab to collect bodily substances from
a suspect's mouth to match it with DNA collected from the crime scene.
Prior to the use of DNA,
identification was heavily based on fingerprints,
footprints, blood, or other evidence that a suspect may have left
behind after committing a crime.
The process of matching a suspects DNA with DNA found at a crime scene has provided both law
enforcement agencies and court officials with a higher probability of
ascertaining the identity of offenders.
DNA fingerprinting has been very useful for law enforcement, as it
has been used to exonerate the innocent. Unlike blood found at a crime
scene, DNA material remains usable for an endless period of time.
DNA technology can be used even on decomposed human remains to identify
Clinical trial and medical research has long been an important
area of medical sciences as it has been referred to in
a large number of mythological and historical texts and
scriptures. The Charaka Samhita (textbook of medicine) and Sushruta
Samhita (textbook of surgery) dating back to 200 B.C. and 200 A.D.
respectively, focus on India’s age old proficiency in medical science.
Today, there are number of laws which govern clinical
research in India, some of them being Drugs and Cosmetics Act, 1940, Medical
Council of India Act, 1956 (Amended in central Council for Medicine Act, 1970,
Guidelines for exchange of Biological Material (MOH Order, 1997) RTI Act,
2005. Since there
are shortcomings in the existing legal provisions with regard to
identification of individuals for specified purposes such as victims of
disasters, missing persons etc.
The Department of Biotechnology came up with a
draft Bill titled “The Use and Regulation of DNA-Based
Technology in Civil and Criminal Proceedings, Identification of Missing
Persons and Human Remains Bill, 2016. On 27 September 2016,
the draft Bill was forwarded to the Law Commission of India for
examination and its revision, if required.
DNA profiling technology, which is based on
proven scientific principles have been found to be very effective for
social welfare, particularly, in enabling the Criminal Justice Delivery
System to identify the offenders. Such tests relating to a party would
definitely constitute corroborative evidence.
Appreciating the use and regulation of
DNA based technology in judicial proceedings, particularly,
identification of persons accused of offenses under the Indian Penal
Code 1860 (IPC) and other laws, identification of missing persons and
disaster victims apart from its use in medical sciences; a need has
long been felt to have a special legislation to regulate human DNA
profiling. DNA analysis offers
substantial information which if misused or used improperly may cause
serious harm to individuals and the society as a whole.
The Commission considered the draft Bill and based
on its examination of the relevant issues it came to the conclusion
that merely amending the Code of Criminal procedure 1973, may not serve
In view of the scope of the use and misuse of human DNA profiling,
it has been felt that it is required to be regulated by a special
law with well delineated standards, quality controls and quality
assurance systems to ensure the credibility of the DNA testing,
restricting it to the purposes laid down in the Act.
Thus, there is a need to regulate the use of human DNA
profiling through a standalone law of Parliament so that such use is
appropriately regulated and restricted to lawful purposes only.
Commission while revising the draft Bill has also been conscious of
the concerns raised by the Courts regarding appropriate use of DNA
technology by making it necessary for the DNA testing centers to abide
by the guidelines and standards which are listed in the Bill and the
details thereof will be worked out in regulations.
Constitutional and Legal Aspects of DNA Profiling
The Constitution under Article 51A(h) and (j) casts a duty on every
citizen of India to develop the scientific temper, humanism and the
spirit of inquiry and reform and to strive towards excellence in all
spheres of individual and collective activity. Under Entry 65 & 66 of
the Union List Parliament is competent to undertake legislations which
encourage various technological and scientific methods to detect crimes,
speed up investigation and determine standards in institutions for
higher education and development in technical institutions .
other relevant provisions of the Constitution are Article 20(3) (i) which
guarantees a right against the self-incrimination and Article 21 (ii) which
guarantees protection of life and liberty of every person.
Indian Evidence Act, 1872:Section 9 of the Indian Evidence Act, 1872 deals with facts necessary
to explain or introduce a fact in issue or relevant fact.
Section 45 provides as to how the Court has to form an opinion upon
a point of foreign law or of science or art, or identity of
handwriting or finger impressions etc.
Section 51 refers to grounds when opinion becomes relevant.
Section 112 provides that birth
during the continuance of a valid marriage is a conclusive proof of
legitimacy with the only exception that the parents had no access to
each other during the period of conception.
114 the Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common course of
natural events, human conduct and public and private business, in their
relation to the facts of the particular case.
If the evidence of an expert is relevant under section 45, the
ground on which such opinion is derived is also relevant under section
51. Section 46 deals with facts bearing upon
the opinions of experts. The opinion
of an expert based on the DNA profiling is also relevant on the same
analogy. However whether a DNA test can be directed or not has
always been a debatable issue.
Criminal Procedure Code, 1973: Criminal Procedure Code,1973 Section 53-A was added vide the Code of
Criminal Procedure (Amendment) Act, 2005 w.e.f 23-6-2006, providing that an
accused of rape can be examined by a medical practitioner, which will
include the taking of bodily substances from the accused of DNA profiling.
It is noteworthy that the said Amendment substituted the Explanation to
sections 53 and 54, and made it applicable to section 53A as well to clarify
the scope of examination, especially with regard to the use of modern
and scientific techniques including DNA profiling.
Section 53 authorizes the police officials to get medical examination of an
arrested person has done during the course of an investigation
by registered medical practitioner.
The Explanation provides
Examination shall include the examination of blood, 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
Section 311-A was
also added to empower the Magistrate to order a person to give specimen
signatures or handwriting.
Judgments Dealing with Self-incrimination of Persons vis-à-vis Article
20(3) of the Constitution.
rendered by an eleven-Judges Bench of the Supreme Court in
State of Bombay v. Kathi Kalu Oghad & Ors.
dealt with the issue of self- incrimination and
held Self-incrimination must mean conveying information based upon the
personal knowledge of the the person giving the information and cannot
include merely the the mechanical process of producing documents in court which
may throw light on any of the points in controversy, but which do not contain
any statement of the accused based on his personal knowledge. An example was
cited of an accused who may be in possession of a document which is in his
writing or which contains his signature or his thumb impression.
It was observed
that the production of such document with a view to comparison of the writing or
the signature or the impression of the accused is not the statement of an
accused person, which can be said to be of the nature of a personal testimony.
In Smt. Selvi & Ors. v. State of Karnataka:
A three-Judge Bench of the Supreme Court considered whether involuntary
administration of certain scientific techniques like narco-analysis, polygraph
examination and Brain Electrical Activation Profile (BEAP) tests and the results
thereof are of a 'testimonial character' attracting the bar of Article 20(3) of
The Court held, it was observed that the scope of 'testimonial compulsion' is
made clear by two premises.The first is that ordinarily it is the oral or
written statements which convey the personal knowledge of a person in respect of
relevant facts that amount to 'personal testimony' thereby coming within the
prohibition contemplated by Article 20(3).
In Ritesh Sinha v. State of U.P
The questions arose as to whether a Voice Spectrographic Test without the
consent of a person offends Article 20(3) of the Constitution and in case the
said provision is not violated, whether a magistrate, in absence of any
statutory provision or inherent power under the provisions of the Criminal
Procedure Code 1973 (Cr. P.C.) has competence to direct a person to be subjected
to such a test without his consent.
The Court held that taking such test would not violate the mandate of Article
20(3) of the Constitution as has been held by the Supreme Court in Selvi
The Supreme Court in Bhabani Prasad Jena v. Convenor Secretary, Orissa State
whilst pressing upon the significance of DNA testing in the process of
administration of justice held 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 for a just decision in the matter DNA test is eminently needed.
Right to privacy and DNA profiling
The issue has been raised time and again whether the right to privacy is a
fundamental right guaranteed under the
If the answer is in the affirmative then the source and the contours of such a
right in view of the fact that there is no provision in Constitution that
expressly provides for a right to privacy needs to be worked
In M P Sharma v. Satish Chandra,
An eight-Judges Bench of the Supreme Court
denied the existence of such a right while dealing with the case of search and
seizure, observing A power of Search and seizure is in any system of
jurisprudence an overriding power of the State for the protection of social
security and that power is necessarily regulated by law. When the
Constitution-makers have thought fit not to subject such regulation to
constitutional limitations by recognition of a fundamental right to privacy,
analogous to the American Fourth Amendment, we have no justification to import
it, into a totally different fundamental right, by some process of strained
Similarly in Kharak Singh v. State of Uttar
a six- Judges Bench reiterated a similar view observing nor do we consider that
Article 21 has any relevance in the context as was sought to be suggested by the
learned counsel for the petitioner the right of privacy is not a guaranteed
right under our Constitution and, therefore, the attempt to ascertain the
movements of an individual which is merely a manner in which privacy is invaded
is not an infringement of a fundamental right guaranteed by Part III.
In Ram Jethmalani v. Union of
Supreme Court dealt with the right to privacy elaborately and held as under:
Right to privacy is an integral part of the right to life.
This is a cherished constitutional value and it is important that human beings
be allowed domains of freedom that are free of public scrutiny unless they act
in an unlawful manner. The solution for the problem of abrogation of one zone of
constitutional values cannot be the creation of another zone of abrogation of
constitutional values. The notion of
fundamental rights, such as a right to privacy as part of the right to life, is
not merely that the State is enjoined from derogating from them. It also
includes the responsibility of the State to uphold them against the actions of
others in the society, even in the context of the exercise of fundamental rights
by those others.
In R Rajagopal v. State of Tamil Nadu
the Supreme Court held that right to privacy
is implicit in the right to life and liberty guaranteed to the citizens of this
country by Article 21.
It is a “right to be let alone”. A citizen has a right to safeguard the privacy
of his own, his family marriage, procreation, motherhood, child-bearing, and
education among other matters.
A similar view has been reiterated by the Court
observing that right to privacy is a right of the citizen being an integral part
of Article 21 of the Constitution of India. Illegitimate intrusion
into the privacy of a person is not permissible as the right to privacy is
implicit in the right to life and liberty guaranteed under our Constitution.
However right to privacy may
not be absolute as in exceptional circumstances, particularly, in the case of
surveillance in consonance with the statutory provisions The right to privacy
has also been held to be a fundamental right of the citizen by the apex Court
in R. Rajagopal v. State of Tamil Nadu and People's
Union for Civil Liberties.
In Justice K S Puttaswamy (Retd.) v. Union of
, the Supreme Court
while dealing with the case of “Aadhar card” (UIDAI) observed that there have
been contradictory judgments on the issue but the law laid down in M P Sharma
and Kharak Singh, if read literally and accepted as a law, the fundamental
rights guaranteed under Article 21 would be denuded of vigor and vitality. The
Court referred the matter to a larger bench for authoritative interpretation of
the law on the issue.
In District Registrar and Collector,
Hyderabad v. Canara Bank
, the Supreme Court
held that right to privacy is a personal right distinct from a right to
property. Intrusions into it by the legislature is to be tested on the
touchstone of reasonableness and for that purpose, the Court can go into the
proportionality of the intrusion vis-a-vis the purpose, sought to be achieved as
“right to privacy” is part of the right to life enshrined in Article 21 of the
Constitution of India.
deciding the said case the Court placed reliance upon a large number of its
earlier judgments including Maneka Gandhi v. Union of India.
The Court held that an
illegitimate intrusion into privacy of a citizen is not permissible as right to
privacy is implicit in the right to life and liberty guaranteed under Article 21
of the Constitution. While examining the constitutional validity of a law
providing restrictions on fundamental rights, the proportionality of measures
taken becomes relevant.
The compelling State interest is just one aspect of the broader strict scrutiny'
test which was applied by the Court in
Anuj Garg v. Hotel Association of India.
The other essential facet is to demonstrate
„narrow tailoring that is the State must demonstrate that even if a compelling
interest exists, it has adopted a method that will infringe in the narrowest
possible manner upon individual right.
The Human DNA Profiling Bill, 2016 and Other Reports
The Human DNA Profiling Bill 2016 The Bill 2016 was drafted by the
Department of Biotechnology and was submitted to the Government of India.
The Bill proposed to form a National DNA Data Bank and a DNA Profiling
Board, and for using the data for various purposes specified in the Bill.
The proposed DNA Profiling Board would have consisted of molecular biology,
human genetics, population biology, bioethics, social sciences, and law and
The Board was to define standards and controls for DNA profiling. It was also
to certify laboratories and handle access of data stored by law enforcement
Similar bodies at State levels were also to be
The National DNA Data Bank was supposed to collect data from offenders,
suspects, missing persons, unidentified dead bodies and
It was to profile and store DNA data in criminal cases like homicide,
sexual assault, adultery and other crimes. The data was to be available also to
the accused or the suspect for proving his non-involvement in the crime or at
least to establish that he was not present on the place of occurrence at the
relevant time. 6.3 The Bill was criticised for not addressing the concerns of
privacy by a large number of organisations and public spirited persons on
similar grounds and made various representations to the statutory
The Bill did not make special provisions in respect of funding of the Board and
how the required funds will be made available to the investigating agencies to
collect proper reports of samples. Moreover, the Bill did not specifically
provide as to on what stage the samples could be collected.
The A. P. Shah Committee Report 85 In October 2012, an expert committee
headed by Hon'ble Justice Ajit Prakash Shah presented its report, suggesting that there
should be safeguards to prevent illegal collection and use of DNA data further
providing safeguards to prevent the proposed body from misusing the same. That
there should a mechanism using which citizens can appeal against the retention
The report also suggested that there should also be a mechanism of
appeal under which citizens under trial can request for a fresh sample to be
taken. The samples were to be taken after consent in case of
victims and suspects. The Committee noted that although the
Bill allowed volunteers to give samples, there was no proper procedure to obtain
consent and there was no mechanism under which volunteer can withdraw his data.
That before giving the data to a third party, the person
must be notified and consent must be sought, if the third party was not an authorised agency. The purpose for which data was being collected should be
stated publicly, and the data should be destroyed after the purpose has been
served and the time frame has expired.
The report said that the bodies
collecting, analysing, and storing DNA data should be made to release an annual
report, detailing their practices and organisational structure. These
observations alleviate the underlying concern about one's right to privacy when
DNA databases are created.
Malimath Committee Report 86Section 293(4) of Cr. P.C. enlists the scientific experts under the Code.
The Committee recommended that DNA experts should be
included in the list of experts under clause (g) .Submitted to the Planning
Commission on 16 October 2012. It recommended amendment of
Cr. P.C. conferring all criminal courts at all levels with the inherent power to
pass appropriate orders as maybe necessary to give effect to any order under Cr.
P.C., or to prevent abuse of the process of any court or otherwise secure the
ends of justice as provided under section 482 Cr. P.C. exclusively for the High
The Committee also recommended an
amendment section 4 of Identification of Prisoners Act, 1920 in line with
section 27 of the Prevention of Terrorism Act, 2002 which empowers the Court to
direct the accused/suspect in writing to give:
- samples of hand writing, finger-prints, foot-prints, photographs, blood,
saliva, semen, hair, voice to the police officer either through a medical
practitioner or otherwise, as the case may be.
- If any accused person refuses to give samples as provided in sub-section
- the Court shall draw adverse inference against the accused.
DNA Profiling, an accurate and well established scientific technique is used
for disaster victim identification, investigation of crimes, identification
of missing persons and human remains, and for medical research
Most of the countries have enacted appropriate laws within the framework of
their respective constitutions and other legal frameworks for the aforesaid
DNA Profiling and use thereof involves various legal and ethical issues and
concerns are raised and apprehensions exist in the minds of the common man about
its misuse which unless protected may result in disclosure of personal
information, such as health related data capable of being misused by persons
having prejudicial interests, adversely affecting the privacy of the person.
Whether in Indian context privacy is an integral part of Article 21 of the
Constitution is a matter of academic debate.
The issue is pending consideration
before the larger bench of the Supreme
Bill of 2017 provides provisions intended to protect the right to privacy. The
mechanism provided permits for processing of DNA samples only for 13 CODIS loci
which would not violate in any way the privacy of a person and as a result will
never go beyond identification of a particular person.
The strict adherence to 13 CODIS loci will eliminate the apprehension of
revealing genetic traits.
The Code of Criminal procedure (Amendment) Act 2005 which came into force on
23rd June 2006 added Explanations to sections 53, 53A and 54 to clarify the
scope of medical examination particularly in respect to the extraction to the
bodily substances and the explanation provides that examination of a person
shall include the examination of blood, blood stains, semen, swabs in case of
sexual offences, sputum and sweat, hair samples and finger nail clippings by
scientific techniques including DNA Profiling and such other tests that the
medical practitioner deems necessary.