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Human DNA Profiling and Right to Privacy

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.

The 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 the victims. 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 the purpose.

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.

The Law 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 . The 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.
  1. 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.

    Under section 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.
  2. 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 that:
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-a-vis Article 20(3) of the Constitution. A judgment 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 Constitution.

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 Commission for women 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 Constitution.

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 out.

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 construction.

Similarly in Kharak Singh v. State of Uttar Pradesh, 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 India. 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 India, 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.

While 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

  1. 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 criminal justice experts.

    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 agencies.
    Similar bodies at State levels were also to be formed.

    The National DNA Data Bank was supposed to collect data from offenders, suspects, missing persons, unidentified dead bodies and volunteers.

    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 authorities.

    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.
  2. 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 of data.

    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.
  3. Malimath Committee Report 86

    Section 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 Court.

    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:
    1. 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.
    2. If any accused person refuses to give samples as provided in sub-section
    3. 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 purposes.

Most of the countries have enacted appropriate laws within the framework of their respective constitutions and other legal frameworks for the aforesaid purposes.

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 Court. The 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.

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