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This blog discusses the possible implications of the public interest litigation that has been placed before the Supreme Court petitioning for the establishment of a DNA database in respect to unidentified bodies.

In the year 2012 Lokniti, a Non Governmental Organization filed a public interest litigation in the Supreme Court of India asking the government to establish a DNA database in respect of unidentified dead bodies as well as for those individuals for whom missing persons reports have been filed so that DNA of unidentified dead bodies can be matched against missing persons - arguing that the right to be identified is a part of the right to dignity, and that such systems have been adopted across the globe. The case has come up a few times since 2012 and parties have been given time to file their replies in these instances. Prior to the 2012 Public Interest Litigation filed by Lokniti, in 2009 a Public Interest Litigation was filed by a Haryana based doctor. The PIL petitioned for the DNA profiling of unidentified bodies to be made mandatory - arguing that thousands of individuals die with their identity being unknown. During the hearing the Bench asked a number of questions including why the Ministry of Health was not brought into the case, given the fact that a number of labs that conduct DNA profiling function under the ministry.

While the case is still pending, the Supreme Court on 22nd September 2014 gave another interim order which was a little more detailed. On this date the Ministry of Science and Technology of the Government of India, through the Department of Biotechnology stated that they are piloting a DNA profiling Bill that would establish a DNA Profiling Board and a National DNA Data Bank. The National DNA Data Bank is envisaged to maintain the following indices for various categories of data:

I. a crime scene index;

II. a suspects' index;

III. an offenders' index;

IV. a missing persons' index;

V. unknown deceased persons' index

VI. a volunteers' index; and

VII. such other DNA indices as may be specified by regulations made by the Board.

One of the Ministry's plans under this Bill is to create DNA profiles of individuals whose relatives have gone missing, on a voluntary basis to help the relatives identify missing persons and unidentified dead bodies. They also stated that cross-matching of DNA profiling data in the database would require specialized software and the CDFB, Hyderabad is in the process of acquiring the same from the Federal Bureau of investigation, USA.

The advocate for Lokniti responded to this saying that the DNA profiling Bill has been pending for a long time and has not seen the light of day for the last seven years. To this the response of the government was that it was a complex Bill involving a number of issues which take a long time to resolve.

At this point the Supreme Court, without going into the details of the Bill asked the advocate for the Union of India to obtain instructions regarding the following two aspects:

(1) Whether pending the Bill coming into force the concerned Department can constitute a Data Bank in respect of dead persons who are not identifiable; and

(2) when there are missing reports in respect of persons to collect the DNA from the permissible sources like siblings or others so that in case any unidentified dead body is found to match the DNA to arrive at the conclusion about the missing persons who are dead; or as an ancillary the missing person who is a victim of the crime of kidnapping or where any child, who is not able to find out his parents, can be in a position to find out through the DNA.

Thus it seems that the Supreme Court, recognizing its limitations in directing the legislature to pass a law and the fact that the passing of the DNA profiling Bill may take a long time to become law, has tried to find a way out in which the concerns of the petitioner regarding a DNA Databank for missing persons and unidentified dead bodies could be addressed without the passage of the DNA profiling Bill. However since the case is still pending in the Supreme Court no final directions have been given in this regard. Thus, the Court has left the government with the responsibility to address the question of whether a DNA Databank can be established without the passing of a legislation providing legal basis for the collection, profiling, databasing, and use of DNA samples.



The order dated September 22, 2014 can be found at http://courtnic.nic.in/supremecourt/temp/wc%2049112p.txt

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