By Apoorva Mandhani
Since the time of its introductory application in 1998, the quest for utilization of DNA mapping and fingerprinting has been an ongoing one. Several attempts at a regulatory legislation have since been made, albeit without any concrete outcome. One such recent venture is the Andhra Pradesh governments plan to introduce a legislation permitting state police and investigating agencies to collect and store DNA samples in a centralized database. The database is being viewed as an effective aid in tracking repeat offenders in sexual assault and rape cases. However, the utility of such an exercise must not be permitted to overshadow the persisting underlying concerns.
DNA fingerprinting is a laboratory technique used to establish a link between biological evidence and a suspect in a criminal investigation | Photo Courtesy: GeneEdA premature move
Much debate around such databases has time and again been focused on the right to privacy of an individual. There is also the looming threat of such database being compromised. However, a more pressing concern lies in the admissibility of DNA-based evidence in the courts. This was pointed out earlier by Mr. Lalji Singh, recognized as the father of DNA fingerprinting technology in India.
[su_pullquote]Further, the judicial interpretation of the existing provisions so far is that DNA testing cannot be carried out without the consent of an individual.[/su_pullquote]
At present, scientific evidence in courts is dealt under Section 45 of the Indian Evidence Act, 1872. This leaves the admissibility of DNA tests as evidence in any court to the discretion of the Judges. Further, the judicial interpretation of the existing provisions so far is that DNA testing cannot be carried out without the consent of an individual. Consequently, this puts the very creation of the proposed database in a jeopardy, as it relies on the consent of the very individual against whom it is aimed to be utilized. Hence, in the absence of requisite amendments to central legislations, the creation of such database might turn out to be entirely futile.
The larger debate
Exploration of the foundational impediments brings us to the larger debate of DNA tests being in violation of the right to privacy, which has been ruled to be imbibed in the fundamental rightProtection of life and personal liberty, as guaranteed by the Article 21 of the Constitution of India.
[su_pullquote align=”right”]However, it should be noted that these rights are not absolute.[/su_pullquote]
Further, the establishment of such database has also been argued to be running the risk of such sensitive information being used for unauthorized purposes. However, it should be noted that these rights are not absolute. They can be restricted on the basis of compelling state interest. For instance, analysing the Human DNA Profiling Billa report of the Group of Experts on Privacy, chaired by Justice A.P. Shah, had suggested various privacy and security provisions. These provisions, if inculcated, were pegged to be capable of tackling the privacy and security concerns. Therefore, such measures, if incorporated in the proposed legislation, could adequately address the issues raised by rights activists.
Reconciling opposing views
While rights activists have vehemently opposed the establishment of a DNA database citing privacy concerns, scientific experts have vouched for the technology.
Scientific experts have averred that since the practice is already in force, having a regulation in place would, in fact, be beneficial. Moreover, the utility of such a database in tracking convicts, and identifying mass disaster victims has also been recognized by several countries across the world.
The observation of the Supreme Court hence holds good here:
[su_quote]It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice.[/su_quote]
Therefore, it is imperative that the Government devices a clear policy for administration of such tests, in order to reinforce Indias commitment to strike a balance between the clean criminal justice system and individual freedom.