I. Maintainability of W.P along with application filed by Mr.

X
under Article 32 of Constitution of India
Mr. X has locus standi to approach Supreme Court of Indica under Article 32 and Article 142

of Constitution of Indica For enforcement of fundamental rights.

The Hon’ble Supreme Court of Indica has the jurisdiction in this matter under Article 32 of

the Constitution of Indica which reads as follows:

1
“32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement

of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including

writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and

certiorari, whichever may be appropriate, for the enforcement of any of the rights

conferred by this Part.

“142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc:-

(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such

order as is necessary for doing complete justice in any cause or matter pending before it, and

any decree so passed or orders so made shall be enforceable throughout the territory of India

in such manner as may be prescribed by or under any law made by Parliament and, until

provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court

shall, as respects the whole of the territory of India, have all and every power to make any

order for the purpose of securing the attendance of any person, the discovery or production

of any documents, or the investigation or punishment of any contempt of itself

1
The Constitution Of India,1950
 I. Collection of DNA sample during undercover operation without
consent is illegal

I.A What is undercover operation?

To go "undercover" is to avoid detection by the entity one is observing, and especially to

disguise one's own identity or use an assumed identity for the purposes of gaining the trust of

an individual or organization to learn or confirm confidential information or to gain the trust

of targeted individuals in order to gather information or evidence. Traditionally, it is a

technique employed by law enforcement agencies or private investigators, and a person who

works in such a role is commonly referred to as an undercover agent2.

In India’s case, intelligence gathering and handling of covert operations aren’t limited to a

single agency. Where the Research and Analysis Wing is responsible for foreign intelligence

gathering and operations abroad, the Intelligence Bureau is responsible for the same

domestically. Further, paramilitary commandos of the armed forces have often been

employed for covert operations across the border3.

I.B In a vast and democracy spirited country like India, Do Undercover operations are
legal ?

Indica having largest, Lengthiest and best Constitution in the world and envisaged many

social, economical, political, including basic civil rights. So, Citizen in the country are

protected and guided by these rights. The Constitution of India intended for Indica to be a

country governed by the rule of law. It provides that the constitution shall be the supreme

power in the land and the legislative and the executive derive their authority from the

constitution. So, every act, decision and policies took by the executive must be supported by

law and subject to constitutional rights. Undercover operation are done by law enforcement

agencies without revealing the identity of purpose. These type of operations are very harmful

to rights of citizens. So, Undercover operations which not backed by any legislations are

illegal and unconstitutional.

2
https://en.wikipedia.org/wiki/Undercover_operation)
3
https://www.quora.com/What-are-the-covert-operations-carried-out-by-India
II.C Collection and retention of DNA without consent from suspect persons is illegal
and violation of Right to Privacy

It is widely recognized that it is acceptable to collect DNA without an individual’s consent in

some specific circumstances, which should be defined in legislation. Taking DNA from an

individual without their consent, and storing their DNA profile on a DNA database, are

interferences with their privacy.

All individuals have the right to determine what information should be collected about

themselves and how it should be used. When it comes to the handling of sensitive

information like genetic data, extra attention is required. Privacy is always an important

human rights issue and current trends in genetic research have raised several new questions.

DNA sample is genetic information. Genetic information is also perceived as ‘sensitive

information’, because such information can be used to indicate a predisposition towards

certain health conditions. Due to its sensitive nature, genetic information is distinct from

other health and medical information. For instance, one of the UNESCO declarations,

namely the International Declaration on Human Genetic Data, has recognized the special

status of genetic data on the basis of its sensitive nature4

According to that, there are some of International conventions which states essential of

consent and to be backed by law.

The Universal Declaration on the Human Genome and Human Rights, adopted unanimously

at UNESCO's 29th General Conference on 11 November 1997, states

Article 9

In order to protect human rights and fundamental freedoms, limitations to the principles of

consent and confidentiality may only be prescribed by law, for compelling reasons within the

bounds of public international law and the international law of human rights”.

Council of Europe Recommendation No. R(92)1 on the use of analysis of DNA within the

4
(
International Declaration on Human Genetic Data, Records of General Conference of UNESCO, s, the International
Declaration on Human Genetic Data was adopted unanimously and by acclamation at UNESCO's 32nd General Conference on 16
October 2003.
 criminal justice system states: “The taking of samples for the purpose of DNA analysis

should only be carried out in circumstances determined by the domestic law; it being

understood that in some states this may necessitate specific authorization from a judicial

authority.

Legislation should define who has the power to collect samples, for what purposes and

specify appropriate, secure locations (such as when a person is held in detention) and

training.

DNA samples are a potential source of human genetic information and can reveal sensitive

health information. It can, therefore, violate bodily integrity, privacy (information concerning

health, familial relationships and so on) and facilitate discrimination against people and have

other social consequences5.

Many law enforcement agencies retain DNA samples from various persons, including

innocent people where the charges were dropped or not proceeded with, or even where the

samples are from persons excluded from investigation by that very sample. When DNA

samples are kept and retained in any databases, it is possible to gather the utmost personal

information about any individual (and including his or her family) with regard to certain

characteristics, including predisposition to certain diseases6.

This is because Genes are considered to be good predictors of many facets of human identity’

As Simoncelli has observed:7

DNA samples can provide insights into personal family relationships, disease predisposition,

physical attributes, and ancestry. Such information could be used in sinister ways and may

5
( Annemie Patyn and Kris Dierickx, 'Forensic DNA Databases: Genetic Testing As a Societal Choice'
(2010) 36 Journal of Medical Ethics 319, 319)

6
Robin Williams and Paul Johnson, 'Inclusiveness, Effectiveness and Intrusiveness: Issues in the
Developing Uses of DNA Profiling in Support of Criminal Investigations' (2005) 33(3) Journal of
Law, Medicine and Ethics 545, 551.)

7
Simoncelli, ‘Dangerous Excursions’, above n 15, 391–2
 include things the person herself does not wish to know. Repeated claims that human

behaviors such as aggression, substance addiction, criminal tendency, and sexual orientation

can be explained by genetics render law enforcement databases especially prone to abuse

Furthermore, the ‘forced or non-consensual’ collection of DNA samples from individuals

constitutes a possible threat to bodily integrity8

In this context, one of the foreign case which throw light on the aspect

In S and Marper,9

The two crucial aspects of the case that need to be kept in mind are – First, in that case, the

fingerprints were collected for criminal purposes and without the consent of the individual to

whom the fingerprints belonged. Second, the fingerprints were to be stored indefinitely

without the consent of the individual and that the individual did not have an option to seek

deletion.

the storing of DNA profiles and cellular samples of any person arrested in the United

Kingdom was challenged before the ECtHR. Even if the individual was never charged, if

criminal proceedings were discontinued, or if the person was later acquitted of any crime,

their DNA profile could nevertheless be kept permanently on record. It held that there had

been a violation of Article 8 of the ECHR. Fingerprints, DNA profiles and cellular samples,

constituted personal data and their retention was capable of affecting private life of an

individual. Retention of such data without consent, thus, constitutes violation of Article 8 as

they relate to identified and identifiable individuals. The Court held that invasion of privacy

was not “necessary in a democratic society as it did not fulfill any pressing social need. The

blanket and indiscriminate nature of retention of data was excessive and did not strike a

balance between private and public interest.

it also held The protection of personal data is of fundamental importance to a person's

enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8
8
(Williams and Johnson, ‘Inclusiveness, Effectiveness and Intrusiveness’.)

9
( [2008] ECHR 1581)
of the Convention. The domestic law must afford appropriate safeguards to prevent any such

use of personal data as may be inconsistent with the guarantees of this Article. The need for

such safeguards is all the greater where the protection of personal data undergoing automatic

processing is concerned, not least when such data are used for police purposes. The domestic

law should notably ensure that such data are relevant and not excessive in relation to the

purposes for which they are stored; and preserved in a form which permits identification of

the data subjects for no longer than is required for the purpose for which those data are

stored … The domestic law must also afford adequate guarantees that retained personal data

was efficiently protected from misuse and abuse.”

II.D No one shall be subjected without his free consent to medical or scientific
experimentations.

Section 10(2) of the Human Rights Act 2004 says that:

No-one may be subjected to medical or scientific experimentation or treatment
without his or her free consent.
Covenant on Civil and Political Rights 1966 :

The International Covenant on Civil and Political Rights (ICCPR) was adopted by the United

Nations General Assembly on 16 December 1966.Indica ratified on 10 April 1979 and came

into force from 10 July 1979.

Article 7 provides a right to freedom from torture, and cruel or degrading treatment.

It says No one shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment. In particular, no one shall be subjected without his free consent to medical or

scientific experimentations

Consent represents the legal and ethical expression of the basic right to have one's autonomy

and self-determination. The principle of autonomy is enshrined within Art. 21 of the Indica

Constitution, which deals with the right to life and personal liberty. The expression personal

liberty under Art. 21 is of the widest amplitude and covers a wide variety of rights, including

the right to live with human dignity.

in B hondar v. Emperor10, Lord Williams, J. held11,

…Any such examination without the consent of the accused would amount to an assault and I

am quite satisfied that the police are not entitled without statutory authority to commit

assaults for the purpose of procuring evidence against them

A similar conclusion was arrived at by Tarkunde, J. in D eomam Shamji Patel v. State of

Maharashtra12.who held that a person suspected or accused of having committed an offence

cannot be forcibly subjected to a medical examination. It was also held that if police officers

use force for this purpose, then a person can lawfully exercise the right of private defence to

offer resistance.

II.E Collection of DNA samples in criminal procedure code only in case of arrested or

convicted but not on suspects

It was the 37th and 41st Reports of the Law Commission of India which recommended the

insertion of a provision in the Code of Criminal Procedure to enable medical examination

without the consent of an accused. These recommendations proved to be the precursor for

the inclusion of Sections 53 and 54 in the Code of Criminal Procedure, 197313.

An important statutory development in our legal system was the introduction of provisions

for medical examination with the overhauling of the Code of Criminal Procedure in 1973.

Sections 53 and 54 of the CrPC contemplate the medical examination of a person who has

been arrested, either at the instance of the investigating officer or even the arrested person

himself. The same can also be done at the direction of the jurisdictional court.

It should be noted that the Explanation to Sections 53, 53-A and 54 of the Code of Criminal

Procedure, 1973 was amended in 2005 to clarify the scope of medical examination,

especially with regard to the extraction of bodily substances The amended provision reads

10
AIR 1931 Cal 601
11
p. 602
12
AIR 1959 Bom 284
13
The 37th Report (December 1967), at pp. 205-206:
53. Examination of accused by medical practitioner at the request of police officer. –

(1) When a person is arrested on a charge of committing an offence of such a nature and

alleged to have been committed under such circumstances that there are reasonable grounds

for believing that an examination of his person will afford evidence as to the commission of

an offence, it shall be lawful for a registered medical practitioner, acting at the request of a

police officer not below the rank of sub-inspector, and for any person acting in good faith in

his aid and under his direction, to make such an examination of the person arrested as is

Reasonably necessary in order to ascertain the facts which may afford such evidence, and to

use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the

Examination shall be made only by, or under the supervision of, a female registered

medical practitioner.

Explanation. – In this section and in sections 53-A14 and 54, -

(a) ‘examination’ shall include the examination of blood, blood-stains, semen, swabs in case

Of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of

Modern and scientific techniques including DNA profiling and such other tests which the

Registered medical practitioner thinks necessary in a particular case;

(b) ‘registered medical practitioner’ means a medical practitioner who possesses any medical

qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act , 1956

(102 of 1956) and whose name has been entered in a State Medical Register.

The judicial power to order a medical examination, albeit in a different context, has been

discussed by this Court in Sharda v. Dharampal15. In that case, the contention related to the

validity of a civil court’s direction for conducting a medical examination to ascertain the

mental state of a party in a divorce proceeding.

14
Inserted through Crpc Amendment, 2005
15
(2003) 4 SCC 493
Needless to say, the mental state of a party was a relevant issue before the trial court, since

insanity is a statutory ground for obtaining divorce under the Hindu Marriage Act,

1955. S.B. Sinha, J. held that Article 20(3) was anyway not applicable in a civil proceeding

and that the civil court could direct the medical examination in exercise of its inherent

powers under Section 151 of the Code of Civil Procedure, since there was no ordinary

statutory basis for the same.

Under Section 75(e) of the Code of Civil Procedure and Order 26, Rule 10-A the civil court

has the requisite power to issue a direction to hold a scientific, technical or

expert investigation.”

The Point noted to be here is the above referred sections are applicable to convicted or

Accused but not on suspects

III Right to fair investigation which is part of Article 21 is violated

by Arresting on suspected matching of evidence collected during
closed operation.
Fair investigation is part of constitutional guarantee under Article 20 and 21 of the Constitution

and it is minimum requirement of Rule Of Law.(Babubhai vs State Of Gujarat16  Fair

investigation and fair trial are concomitant to preservation of fundamental right of

an accused under Article 21 of the Constitution of India.(Nirmal Singh Kahlon vs State

Of Punjab & Ors 17

 Investigating agencies are guardians of the liberty of innocent citizens. Therefore, a heavy

responsibility devolves on them of seeing that innocent persons are not charged on an

irresponsible and false implication in R.P. Kapur Vs. State of Punjab18 it held that

Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely

16
 (2010) 12 SCC 254)

17
2009) 1 SCC 441)
18
AIR 1960 SC 866
 essential for investigative professionalism.

High responsibility lies upon the investigating agency not to conduct an investigation in

tainted and unfair manner. The investigation should not prima facie be indicative of a biased

mind and every effort should be made to bring the guilty to law19.

Fair and Proper Investigation’ in criminal jurisprudence has twin purpose:-

Firstly, the investigation must be unbiased, honest, just and in accordance with law.

Secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the

case before the court of competent jurisdiction.

PRESUMPTION OF INNOCENCE

Articles 11 of the Universal Declaration of Human Rights says, “Everyone charged with a

penal offence has the right to be presumed innocent until proved guilty according to law in a

public trial at which he has had all the guarantees necessary for his defence20.”.

As was observed in Rabindra Kumar Dey vs State Of Orissa21 :

(Also see: Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay22

Three principles of criminal jurisprudence which are well settled are as under:

(i) that the onus lies affirmatively on the prosecution to prove its case beyond

reasonable doubt and it cannot derive any benefit from weak- ness or falsity of

the defence version while proving its case;

(ii) that in a criminal trial the accused must be presumed to be innocent until he is

proved to be guilty; and

(iii) that the onus of the prosecution never shifts.

As was held by the Hon’ble High Court of Andhra Pradesh in the case of Katcherla Venkata

19
State of Bihar Vs. P.P.Sharma AIR 1991 SC 1260)

20
https://www.humanrights.com/course/lesson/articles-06-11/read-article-11.html
21
1977 AIR 170, 1977 SCR (1) 439
22
[1960] 3 S.C.R. 319. 324
 Sunil vs Dr. Vanguri Seshumamba And Ors23:, the presumption of innocence is available to

him under the fundamental principle of criminal jurisprudence that every person shall be

presumed to be innocent unless he is proved guilty by a competent court of law.

III.A Collection of DNA sample is without consent from suspect is violation of Right

against Self Incrimination.

Clause (3) of Article 20[i] of the Indian Constitution, 1950 provides that “No person accused

of any offence shall be compelled to be a witness against himself.” This principle is

espoused on the maxim “nemo teneteur prodre accussare seipsum”, which essentially means

“NO MAN IS BOUND TO ACCUSE HIMSELF.”

This libertarian provision can be connected to an essential feature of the Indian Penal Code

based on the lines of Common Law that, “an accused is innocent until proven guilty” and the

burden is on the prosecution to establish the guilt of the accused; and that the accused has a

right to remain silent which is subject to his much broader right, against self-incrimination.

In many countries the suspects who are detained and questioned by law enforcement agencies

has fundamental rights. They include right against self incrimination;

The question of whether Article 20(3) should be narrowly construed as a trial right or a broad

protection that extends to the stage of investigation has been conclusively answered by

our Courts.

The broader view of Article 20(3) was consolidated in Nandini Satpathy v. P.L. Dani24

Any giving of evidence, any furnishing of information, if likely to have an incriminating

impact, answers the description of being a witness against oneself. Not being limited to the

forensic stage by express words in Article 20(3), we have to construe the expression to apply

23
2008 CriLJ 853
24
(1978) 2 SCC 424:
to every stage where furnishing of information and collection of materials takes place. That

is to say, even the investigation at the police level is embraced by Article 20(3) .