GOVERNMENT OF INDIA
LAW COMMISSION OF INDIA
Report No. 271
Human DNA Profiling –A draft Bill
for the Use and Regulation of
Table of Contents
|International Human Rights Laws||6-10|
|Constitutional and Legal Aspects of DNA Profiling||11-27|
|Laws in Other Countries||28-36|
|The Human DNA Profiling Bill, 2016 and Other Reports||37-39|
|Relevant Portion from “National DNA Databases, 2011”||45-53|
|The DNA Based Technology (Use and Regulation) Bill, 2017||54-88|
Dr. Justice B. S. Chauhan
Former Judge, Supreme Court of India
Law Commission of India
Department of Legal Affairs
Government of India
26 July 2017
Dear Shri Ravi Shankar Prasad ji,
I have great pleasure in forwarding herewith the Two Hundred and Seventy First Report of the Law Commission of India, titled “Human DNA Profiling –A draft Bill for the Use and Regulation of DNA-Based Technology”.
Discovery of DNA is considered as one of the most significant biological discoveries during the 20th century owing to its tremendous impact on science and medicine. Of late, it is acting as a very useful tool of forensic science that not only provides guidance in criminal investigation and civil disputes, but also supplies the courts with accurate information about all the relevant features of identification of criminals. With a view to frame a legislation for the use and regulation of DNA-based technology in civil and criminal proceedings, and identification of missing persons and human remains, the Department of Biotechnology proposed 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”. The Draft Bill was forwarded to the Law Commission of India in September 2016 for its guidance. The draft Bill was thoroughly examined in the light of a plethora of judicial pronouncements and the constitutional provisions. Thereafter the Commission has devised a new draft Bill titled “The DNA Based Technology (Use and Regulation) Bill, 2017”which has been annexed to the Report.
With warmer regards,
[Dr. Justice B S Chauhan]
Shri Ravi Shankar Prasad
Hon‟ble Minister for Law and Justice
Government of India
New Delhi –110 115
1.1 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. DNA fingerprinting also has certain distinctive features.
1.2 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.
1.3 Prior to the use of DNA, identification was heavily based on finger prints, foot prints, blood, or other evidence that a suspect may have left behind after committing a crime. The process of matching a suspect‟s 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.
1.4 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.
1.5 Clinical trial and medical research has long been an important area of medical sciences as it has been referred to in large number of mythological and historical texts and scriptures.
1.6 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 2002)
- Central Council for Medicine Act, 1970
- Guidelines for exchange of Biological Material (MOH Order, 1997)
- RTI Act, 2005
1.7 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.
1.8 DNA profiling technology, which is based on proven scientific principles1 , has 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.2 Appreciating the use and regulation of DNA based technology in judicial proceedings, particularly, identification of persons accused of offences 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.
1.9 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.
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