“DNA profiling” is not a new term for all, because we have studied during school time. It is a technique by which individuals can be identified and compared via their respective DNA profiles. But now it is taking the form of legislation in India in the DNA profiling bill 2018 . Recently union cabinet passes it. Originally it was conceptualised by late former PM of India Atal Bihari Vajapyee . The drafting of then bill began first in 2007 and then in 2012.This bill was prepared by Department Of Biotechnology to form National DNA bank and DNA profiling board ,which will collect data from offenders ,suspects, missing person ,unidentified dead bodies in crime cases like homicide, sexual assault, adultery .
The government of India made decision due to PIL filed by a NGO Lokniti Foundation, known as Lokniti Foundation vs Union of India, stating that that India does not have a national bank data bases to address the issues of thousands of unclaimed dead bodies in India that are represent annually. In the wake of this PIL Supreme Court asked the court government to address the issue and A.P Shah Committee was formed and recommended the following guidelines:
Citizens can appeal against the retention of data.
Citizens under trial can request a second sample to be taken.
Sample must be taken after consent in case of victims and suspects.
Bodies collecting analysing and storing DNA data should be made to release an annual report, detailing their practices and organisational structure.
In case of any breach or misuse of data it will carry a punishment of up to 3years and 1 lakh as a fine.
The bill provides a index such as crime scene index, suspect index, undertrials index, offender index and missing person index. This bill made an effort to protect the compulsion or pressure to obtain a DNA sample from the arrest person without its consent but with some exception. Such exception is unclear in the bill. In case if suspect /criminal refuses to give its consent for DNA sample then by magistrate approval it can be taken, but sample can also be taken from a witness from a crime scene or want to locate their missing relative or in similar instances in which they can volunteer in writing, to offer their DNA sample for a specific purpose.
But amidst of all this ,bill facing certain criticism specifically with respect to privacy matters. DNA is the key to all information . In Putta Sammy vs Uoi, the Supreme Court held that privacy in fundamental right under Article 21and hence overruled the M.P Sharma case 1958 and Kharak Singh case 1961, where the Apex Court held that privacy is not a Fundamental right under Article 21 of part 3 of the Indian Constitution. The biggest problem to regulate this bill in practical is that India don’t have proper data protection law at present.. Many experts believe that this DNA bank will not have any improvement in conviction rates, where it is so adopted by other countries.
The biggest challenge is that we need DNA examiners and expert, even our enforcement agency must need regular training regarding how to take sample and preserve it because the rate of contamination is very high if not handled properly and it may lead to wrong investigation. India need to spend money on developing world class laboratory. No doubt this bill help to provide fast criminal administration justice but at the same time concern of privacy of individuals.
Pawan Kumar Sharma