Those convicted in criminal cases on the basis of circumstantial evidence may get a second chance to “establish their innocence”. The government is planning to allow use of DNA profiling to give them an opportunity to provide evidence of their wrongful conviction.
In its affidavit in the Supreme Court, the Ministry of Science and Technology has furnished the finer points of the proposed Human DNA Profiling Bill, which includes setting up a national DNA data bank and a DNA profiling board for collecting and using DNA profiles for specified purposes.
One purpose has been listed as: “To provide opportunity for previously convicted individuals to seek DNA testing to establish their innocence.” Dubbed as a salient feature of the Bill, this was included in the draft following suggestions of an expert committee.
The proposed law seeks to utilise a national DNA data bank to help a convict ascertain his or her innocence. As per the affidavit, the data bank shall maintain profiles under seven categories — crime scene index, suspect’s index, offender’s index, missing person’s index, unknown deceased person’s index, volunteer’s index and any other indices as may be specified under the regulations to be framed by the profiling board.
The ministry has clarified that some of these would be collected on a voluntary basis. For instance, DNA profiles of individuals whose kin have gone missing would be created on a voluntary basis.
In order to broadbase the data bank, volunteers’ profiles would be created under two indices — for the specified purpose of identifying missing persons and unidentified bodies, and for research purposes. Volunteers’ DNA profiling would help in getting information about the genetic structure of sub-populations.
The proposed law includes provision for penalties for abuse, misuse and unauthorised use of forensic samples for DNA profiling and the extracted DNA.
The government has told the court that it would need legal sanction through a legislation for creating the DNA data bank. The department of legal affairs has given its concurrence to the proposed Bill and the legislative department has finished drafting the modified Bill. It has now been referred to the law ministry for final approval, according to the affidavit.
The draft Bill is in the process of being submitted to the Union Cabinet, after which it is likely to be introduced in Parliament in the second leg of the Budget Session.
The affidavit signifies that the government has finally moved ahead, after encountering various stumbling blocks including concerns regarding constitutional and privacy rights of suspects, and massive expenditure to be incurred on creation of a national DNA data bank. In its previous affidavits, the government had flagged these issues while responding to a PIL by NGO Lokniti Foundation which has sought creation of a data bank.
Since the advent of DNA profiling in the 1980s, it has been successfully utilised in criminal cases, disaster victim identification and paternity testing. Use of DNA profiles has been one of the most crucial pieces of evidence relied upon by courts in countries like UK, USA, France and New Zealand, which have also created national DNA data banks.