1. Short title.—This Act may be called the Powers-of-Attorney Act, 1882. Local extent.—It applies to the whole of India 1 [except the State of Jammu and Kashmir];

(Commencement) —And it shall come into force on the first day of May, 1882.

2 [1A. Definition.—In this Act, “Power-of-Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it.]3[1A. Definition.—In this Act, “Power-of-Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it.]"

2. Execution under power-of-attorney.—The donee of a power-of-attorney may, if he thinks fit, execute or do any 3 [***] instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every 3 [***] instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof. This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force.

3. Payment by attorney under power, without notice of death, etc., good.—Any person making or doing any payment or act in good faith, in pursuance of a power-of-attorney, shall not be liable in respect of the payment or act by reason that, before the payment or act, the donor of the power had died or become 4 [***] of unsound mind, 4 [***] or insolvent, or had revoked the power, if the fact of death 4 [***] unsoundness of mind, 4 [***] insolvency or revocation was not, at the time of the payment or act, known to the person making or doing the same. But this section shall not affect any right against the payee of any person interested in any money so paid; and that person shall have the like remedy against the payee as he would have had against the payer, if the payment had not been made by him. This section applies only to payments and acts made or done after this Act comes into force.

NEW DELHI: More than a decade after Parliament enacted the Juvenile Justice (Care and Protection of Children) Act, the Supreme Court on Thursday cracked the whip for its implementation, making it mandatory for states to provide a plain-clothed special juvenile police officer (SJPO) in every police station.

In addition, the states have to create a Special Juvenile Police Unit (SJPU), comprising personnel specially trained and oriented for child causes (read offences) in every district and each missing child report must be converted into FIRs, the court ordered.

Though the court had ordered implementation of the law enacted in 2000 by Parliament, very few states have responded to a PIL by Bachpan Bachao Andolan, which alleged that very little was done to trace nearly 55,000 children who go missing every year. Senior advocate H S Phoolka complained that there was lack of scientific investigation to trace the children and that the law for juveniles had not been implemented.

The Supreme Court on Thursday made it mandatory for police stations across the country to compulsorily register missing complaints of any minor and appoint a special police officer to handle complaints of juveniles. Such police personnel should be stationed at every police station in plain clothes.

At a time when there has been a spurt in reports of trafficking of minor children and their abuse, a bench of Chief Justice Altamas Kabir and Justices J Chelameswar and Vikramjit Sen was livid with the casual approach of six states, which did not even bother to depute a lawyer to represent them during the hearing.

Over the years Indian law enforcement agencies have been permitted, through evolving legislation, to collect material containing DNA as a way of providing additional evidence for the conviction of criminals in India. Starting in the 1920s, the collection and use of biometrics for identification of criminals legally began for India with the approval of the Identification of Prisoners Bill.[1] The object of the Bill is to “provide legal authority for the taking of measurements of finger impression, foot-prints, and photographs of persons convicted or arrested.”[2] The Bill is still enforced in India, and in October 2010 was amended by the State Government of Tamil Nadu to include “blood samples” as a type of forensic evidence. Other Indian legislation pertaining to forensic evidence is the Code of Criminal Procedure (CrPc) and the Indian Evidence Act. In 2005, the CrPc was amended to authorize investigating officers to collect DNA samples with the help of a registered medical practitioner.[3] Both the CrPc and the Indian Evidence Act fail to address the collection and testing of DNA effectively as they do not set procedures for how the DNA samples should be collected, stored, shared, accessed, secured, and destroyed.

Though India allows the collection of DNA samples by law enforcement agencies for identification purposes, it does not have a national law in force that regulates how governments collect, store, create, and use DNA profiles of accused persons. A DNA profile is created when DNA samples are taken from individuals and are analyzed in laboratories to produce a digitized representation of the sequence. Once created, a DNA profile is stored on a database with other identifying information from the individual and information from the crime scene. Creating DNA profiles and using them to solve crimes has been a growing global practice over the past two decades. Despite the lack of explicit safeguards and regulations, both governmental and non-governmental laboratories have been collecting, testing, and storing DNA samples/profiles for many years. These laboratories function off of internal policies and run DNA tests for both forensic purposes (identifying criminals, victims, etc., conducted by both private and public labs) and personal purposes (paternity and medical, conducted by private labs).

Proposed Legislation

In the past few years, two pieces of legislation that serve to regulate the use of DNA for forensic purposes have been drafted or proposed in India. The most recent legislation, titled the Privacy Bill 2011, was leaked to the public in the spring of this year. If passed, the Bill will allow for the collection of DNA samples only with the consent of an individual, and will prohibit the public disclosure of such information to the extent that it will adversely affect an individual’s right to privacy in a way that would amount to a civil wrong. Though the Bill creates an important standard by mandating consent, it fails to comprehensively protect and regulate the use of DNA data.[4] In 2007, a Bill known as the Draft DNA Profiling Bill was piloted by the Centre for DNA Fingerprinting and Diagnostics, an autonomous organization funded by the Department of Biotechnology in India’s Ministry of Science and Technology. The Bill is pending in Parliament, and aims to legalize the collection and analysis of DNA samples for forensic purposes in order to “enhance the protection of people and administration of justice through analysis of DNA found at the crime scene, and establish identity of victim and offenders.” In its current state, the Bill would permit DNA to be collected and stored in a way that raises many concerns related to privacy and civil liberties.

Most concerning, through a list that outlines the circumstances in which DNA can be collected, the Bill allows for the DNA of innocents who are not related to a crime scene, are not victims, and are not criminals to be added to DNA databases.[5] This list can be expanded by the DNA Board as they deem appropriate.[6] Furthermore, the Bill does not specify at what point exactly DNA can be collected e.g., whether the DNA can be collected on arrest or on charge, whether the DNA has to be directly relevant to the offence, whether the police decide this for themselves, and what are the oversight mechanisms for these decisions. Permitting the collection and storage of innocent people’s DNA is dangerous for many reasons and extends the core rationale of collecting DNA far beyond “for forensic purposes.” As noted by the American Constitution Society for Law and Policy, by adding the DNA data of individuals with no discretion to these databanks, the governmental intent is presumptively changed from one of criminal investigation to population surveillance.[7] The debate over holding an innocent person’s DNA is key to understanding the core of what can and should be protected when formulating safeguards and regulations. Does the state ever have an interest in DNA aside from criminal identification? If so, should the government collect the DNA explicitly for that purpose?

https://www.sciencedirect.com/science/article/pii/S2090536X15000246

DNA technology has proved to be a worthy investigative tool for releasing the innocent citizens and bringing forth the person responsible for serious crimes. In a populated country like India there is a requirement for these types of databases. The Union government is working on a new version of a legislation that seeks to set up a national DNA database of ‘offenders’. As expected with the great success of the use of forensic DNA databases, new challenges are coming up. To rise to the challenges, different strategies have been proposed for increasing search capabilities, the implementation of which is on-going. The Federal Bureau of Investigation (FBI) in the US has proposed to add more autosomal short tandem repeat (STR) loci to its current core set of loci. The constant growth in the size of forensic DNA databases raises issues on the criteria of inclusion and retention and doubts on the efficiency, commensurability and infringement of privacy of such large personal data collections. People have difficulties that spill beyond the level of simple privacy and confidentiality issues.

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Keywords

ForensicDNADatabaseCrimeRiskIndia

1. Introduction

A countless number of children go missing every year. The category of missing children include a number of problems including abduction or kidnapping of children by family members and by non-family members, run-away children or those forced to run away by family and surrounding circumstances, children who are in a difficult or aggressive environment, trafficked children, and lost children. Missing Children Because of this wide array of problems it is hard to survey the number of missing children. Often cases are not reported to the police. In 2005 National Human Rights Commission (NHRC) informed that on an average 44000 children are reported missing every year. Of these, as many as 11,000 remain untraced.

Children who go missing may be exploited and abused for various purposes from camel jockeys in the Gulf countries to victims of organ trade and even grotesque cannibalism as reported at Nithari village in Noida. There are also a large number of children who run away from homes after dropping out of school or facing difficulties at home. They usually run away to the glamorous big cities where they fall prey to exploiters and are employed in tea stalls, brothels, beggary, etc. Most of the children come from poorer families who do not have access to police services or whose reports are not taken seriously.

When a child goes missing there no FIR filed as there is no cognizable offence committed. Hence only an entry is made into the General Station Diary at the concerned police office. Information of the missing child is forwards up to the Chief of police as well as locally police officers generate awareness through the media. The police headquarters of each state has a missing person bureau. A database of missing persons is maintained by the Missing Persons Wing at the National Crime Records Bureau (NCRB) in New Delhi.

Some recommendations/suggestions of the NHRC Committee made to state and union governments:

Missing children should become a priority issue with state and union governments and law enforcement agencies.

The Government of Maharashtra proposes to carry out DNA tests on children used for begging and persons in whose custody these children are found. It claims that the procedure would conclusively reveal if the latter are the biological parents of the child or not. If they are found to be unrelated, the government proposes to trace the real parents through an online DNA database and thus, reunite the children with their families.

This is not the first time that the government has announced its intention to bring about such a policy. The proposed policy option needs to be properly understood as it is being announced repeatedly and may be taken up for formal approval.

Barring a few people who have raised their eyebrows over the idea that someone’s DNA report will be collected and stored by the government in its data bank, apparently there is not much objection to the idea per se. Considering the seriousness and rising number of cases of ‘missing and found but untraced’ children mostly belonging to certain weaker and vulnerable section of the society, as well as the technological superiority and indispensability of DNA matching, a vague objection to create a DNA data bank might not get much attention. Nonetheless, it may be stressed at the outset that DNA data being sensitive, must be handled carefully and responsibly.

At face value, the idea looks noble and appealing. But on closer inspection, it will be clear that the idea is vague and full of defects and gaps. What must be appreciated is the announcement of the State’s desire to do something about the issue of children used for begging, although in its current form, it is naïve, poorly conceptualised and based on incorrect presumptions.

Presumptions in the State’s design:

(Google Translation)

Children adopted from Chile may have been taken without the mothers consent. See how it's been here. Photo: Chilevision / Wikimedia Commons

Sweden at the center of illegal adoptions with Chilean children

Many of the children adopted from Chile to Sweden during the 70's and 80's may have been taken from their mothers without their consent. It shows a review that Chilean journalists have done in cooperation with SVT. A former head of the Chilean child welfare authority SENAME claims that an unknown number of children were exposed to trafficking in human beings.

It was during the years 1971 to 1992, thus largely during the Pinochet dictatorship, as more than 2,000 children were adopted from Chile to Swedish couples. Over the years, these adoptions have been questioned and there have been previously information that many of them were not entitled to many mothers to take care of the children by means of various persuasive campaigns - and sometimes in kidnapping-like forms.

Trouw

23-01-1995

5

Why is Maneka Gandhi, the minister of women and child development, determined to shift the process of adoption of children out of the domain of the courts and place it under the control of an executive magistrate (district collector)?

Adoption, as defined in Section 2(2) of the Juvenile Justice Act, 2015, “means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child”.

Severing of ties with an existing family and creating permanency in a new family requires due diligence and precaution. These concerns have been addressed by the Supreme Court of India, the Central Adoption Resource Authority (CARA) and the Ministry of Women and Child Development (MWCD) in the past. Obviously, Gandhi thinks differently and feels the judicial process is cumbersome and time-consuming and so believes that the executive magistrate will help expedite this process.

The minister, however, seems to overlook the fact that the overworked district collector is already busy with the task of implementing over 100 separate programmes. He/she is hardly in a position to be able to personally scrutinise and verify every document for adoption. The chances are that he/she will hand over the task of scrutinising this to juniors.

Also, at the district-level, the executive magistrate is a nomenclature that is used to cover several revenue officials, including even tehsildars. Will tehsildars now decide which child is to be given in adoption to which family?