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Date 2024-03-17

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DNA legislation in India

As of now there is no legislation around DNA evidence to explain its validity and procedures but DNA testing has got legal
validity in 1989. Kunhiraman v. Manoj, was the first paternity dispute which required the DNA evidence. The courts are
taking DNA evidence as an expert's opinion, like a corroborative piece of evidence, like forensic experts, ballistic expert,
biological expert, chemical expert; document writing expert etc.
The bureaucracy and Law commission has knocked the door of the parliament and the Indian Parliamentary Affairs board
has also set up an advisory committee to give a analytical report on every aspects of the DNA.
The Law Commission in its 185th report has also recommended the inclusion on DNA testing in the Indian Evidence Act
by amending its Section 112.

The DNA Profiling Bill of 2007 was never introduced in Parliament. The provision of that bill were similar to that of DNA
Technology (Use and Application) Regulation Bill, 2019.
One of the provision of the bill was to conduct mandatory DNA tests of all convicted criminals. It also contained provision
to achieve standards for laboratories, staff training and qualifications, collection of body substances, etc. The Bill was gave
the power to form a DNA profiling board comprising of scientists, administrators and law enforcement officers. There are
just around 30-40 labs with DNA profiling ability while the cases pending are over 90,000.
The Bill has also tried to increase its efficiency by adding the provision where the samples can be shared across countries.
This was necessary keeping in mind the increasing global threat of terrorism. The bill aimed at achieving the results by
primarily setting up DNA data bank. The samples preserved will be of suspects, convicts, missing persons and also
unidentified dead persons. All the labs will be linked and will contribute the data to these data banks.
Now the question which comes to mind is whether this would be legal or not to ask for accused to supply a sample of his
DNA for analysis.
What is of concern here is that, does forcing the accused to provide a sample of his DNA amount to a violation of the
protection against self-incrimination?
Also, if the accused refuses to give the sample, then does that mean that an adverse inference will be drawn against him?
In the case of “Goutam Kundu v. State of W.B” , there was a question of disputed paternity.
The Court held that no person can be compelled to give sample of blood for analysis against his/her will and no
adverse inference can be drawn against him/her for
this refusal.
The constitutionality in taking a fingerprint was challenged in the case of “State of Bombay v. Kathi Kalu Oghad”. the
Apex court held that Article 20 (3) of the Constitution gives protection to a person not to be a witness against himself.
However, "to be a witness" is not equivalent to "furnishing evidence" in its widest term and significance.
Giving thumb or finger impression or exhibiting parts of the body by way of identification are not included in the
expression "to be a witness".
Being a witness has been interpreted to mean imparting some sort of knowledge in testimony.
From this it appears that there will be no constitutional restriction on the collection of samples for DNA analysis.

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■ Dilemma of DNA databases -
The concept of DNA database is very controversial in nature. It poses threat of invasion of civil liberties, particularly
“fundamental justice” rights (the taking of samples without laying a foundation of reasonable and probable grounds). Since
it reveals more than identity alone.
There are two possible forms of data banks. The one with constricted samples will have only that of convicts. While on the
comprehensive level, it will contain profiles obtained by routine testing of inhabiting of an area where a crime has been
committed which will eventually, with time, bring every one under its ambit.
An objection to data banks of all descriptions is that the information contained in the samples obtained is more
compendious than is required for the purposes of criminal investigation.
Unlike a fingerprint the sample obtained for the purposes of a DNA profile may reveal not only whether X was at the
scene of the crime, but also whether
X has any genetic defects or diseases, such as AIDS.
The uses to which this superfluous information might be put raises important civil rights questions.
It has been suggested that DNA profiles contain data of such a personal nature that they should not be stored on
databases 26. The information stored in this bank will be of private in nature. So if the samples are destroyed after storing
only the relevant portion then this might be appropriate solution.

■L

Matched Source

Similarity 25%
Title:evidence law
Manoj, was the first paternity dispute which required the DNA evidence. The courts are taking DNA evidence as an expert's
opinion like forensic experts ...
https://pdfcoffee.com/evidence-law-2-pdf-free.html

Similarity 13%
Title:(PPT) an introduction to DNA profiling - Academia.edu
, The Law Commission in its 185th report has also recommended the inclusion on DNA testing in the Indian Evidence
Act by amending its section 112. but so far DNA report is not conclusive over sec. 112 of evidence Act.
https://www.academia.edu/4477224/an_introduction_to_DNA_profiling

Similarity 12%
Title:Eastern Book Company—Practical Lawyer
... What is of concern here is that does forcing the accused to provide a sample of his DNA amount to a violation of the
protection against self-incrimination?
https://www.ebc-india.com/lawyer/articles/2004_8_17.htm

Similarity 5%
Title:www.ebc-india.com › lawyer › articlesEastern Book Company—Practical Lawyer - EBC
The Court held, that no person can be compelled to give sample of blood for analysis against his/her will and no adverse
inference can be drawn against him/her for this refusal. The constitutionality in taking a fingerprint was challenged in the
case of State of Bombay v.
http://www.ebc-india.com/lawyer/articles/2004_8_17.htm/

Similarity 6%
Title:DNA sampling: An ignored yet a cardinal domain of evidences

https://thedailyguardian.com/dna-sampling-an-ignored-yet-a-cardinal-domain-of-evidences/

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Similarity 9%
Title:Eastern Book Company—Practical Lawyer - EBC
Being a witness has been interpreted to mean imparting some sort of knowledge in testimony. From this it appears
that there will be no constitutional restriction on the collection of samples for DNA analysis. 39
http://www.ebc-india.com/lawyer/articles/2004_8_17.htm

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