The DNA Technology (Use and Application) Regulation Bill 2019, a steadfast endeavour introduced in Parliament multiple times, invoked robust debate, and faced resistance due to concerns regarding the precision of DNA technology, the potential encroachment upon individual privacy, and the spectre of misuse. Consequently it was withdrawn by the government. Another reason was that the crux of the Bill’s provisions had already found their way into another landmark legislation, the Criminal Procedure (Identification) Bill, 2022, which garnered approval in both the Lower House and upper House of Parliament and became an act on after receiving the assent of the President on April 18, 2022.
DNA and DNA Profiling
Deoxyribonucleic acid (DNA) is a double helical organic chemical that carries the genetic information of living organisms. DNA is unique for each person, except for identical twins, and can be used as a biological marker to identify and distinguish people.
DNA profiling is a prominent method employed by forensic scientists to aid in distinguishing individuals or samples based on their unique DNA profiles. Despite the human genome sharing over 99.1 per cent similarity across the population, the remaining 0.9 per cent of DNA exhibits distinct variations among individuals.
DNA profiling serves as a vital tool in criminal investigations and forensic science. Additionally, it finds practical applications in determining parentage through paternity tests for unclaimed infants. Many countries acknowledge the credibility of DNA analysis and have incorporated its results as evidence in numerous criminal cases. Beyond its forensic utility, DNA profiling is commonly employed for diagnosing and treating inherited disorders, as well as for personal identification purposes.
The first use of DNA profiling occurred in 1985, initially tailored for forensic applications. It was first used during a rape and murder inquiry involving two teenage girls, Lynda Mann and Dawn Ashworth, in the vicinity of Leicestershire, the UK, during the 1980s.
Forensic biologists in specialised laboratories extract DNA from samples. Individual countries determine the specific tools employed in their labs for analysing genetic markers called short tandem repeats (STRs). These markers collectively form a DNA profile. These DNA sequences can most easily be detected using the polymerase chain reaction (PCR)-based DNA profiling methods. While various tools might focus on different markers, there exists enough commonality to facilitate comparisons across countries.
Legislation regarding DNA Testing in India
- In India, there is a lack of specific legislation that can offer precise guidelines to investigating agencies and the court concerning the procedures to be followed in cases where DNA is presented as evidence.
- However, DNA evidence was covered under Section 45 of the Indian Evidence Act 1872 under ‘scientific evidence’.
- Nevertheless, certain provisions do permit the examination of individuals accused of rape by a medical practitioner and the medical examination of the rape victim. However, the admissibility of these pieces of evidence has remained uncertain due to conflicting opinions from the Supreme Court and various high courts in different judgments.
- Judges acknowledge the scientific accuracy and conclusiveness of DNA testing; however, in certain instances, they refrain from admitting such evidence due to legal or constitutional prohibitions and occasionally based on public policy considerations.
- Section 53 of the Code of Criminal Procedure, 1973 authorises a police officer for getting the assistance of a medical practitioner in good faith for the purpose of the investigation and do not allow the collection of blood, semen, etc., as evidence to bring charges against a person.
- Courts also avoid using the DNA test technique considering the right of privacy under Article 21 of the Constitution and the right against self-incrimination under Article 20(3) of the Constitution.
Various Supreme Court Judgments on DNA Testing
- Bhabani Prasad Jena, 2010: Judges cannot order genetic tests as a ‘roving enquiry’.
- Banarsi Dass, 2005: Judges should balance ‘the interests of the parties’. DNA tests should also not be ordered if there was other material evidence at hand to prove the case.
- Ashok Kumar judgment: The Supreme Court stated that before ordering a genetic test, judges should examine ‘proportionality of the legitimate aims’ being pursued.
Overall, it can be concluded that DNA tests cannot be ordered as a ‘matter of course’ merely because they are permissible by law.
International Guidelines on DNA Profiling
Internationally, the DNA Commission constituted by the International Society for Forensic Genetics (ISFG) and strict guidelines are issued in the case of DNA sampling and profiling considering not only human rights but also use and maintenance of DNA. All countries are required to follow these guidelines including India.
The DNA Technology Bill
The DNA Technology Bill was proposed as a measure to establish the identity of certain category of persons including victims, offenders, suspects, undertrials, missing persons and unknown deceased persons.
Key Features of the Bill
Use of DNA Data
- DNA testing is permitted only for matters listed in the Bill’s Schedule, including the offences that come under the Indian Penal Code and civil matters like paternity suits.
- DNA testing is allowed for establishing individual identity.
Collection of DNA
Investigating authorities can collect bodily substances for DNA profiling. However, consent is required for collection in certain situations:
- Written consent will be required for taking the samples of the arrested persons if the punishment is up to seven years.
- No consent needed if the punishment exceeds seven years or includes death.
- Consent will be required for victims, relatives of missing persons, minors, or disabled persons.
- Authorities can approach a Magistrate for obtaining consent in specific cases.
DNA Databank
- National and Regional DNA Databanks will be established.
- DNA laboratories should share data with these banks.
- Databanks must maintain indices for crime scenes, suspects, offenders, missing persons, and unknown deceased persons.
Removal of DNA Profiles
- Criteria for entry, retention, or removal will be specified by regulations.
- Profiles of suspects, undertrials, and others must be removed in specific scenarios.
DNA Regulatory Board
- Establishment of DNA Regulatory Board, chaired by the Secretary of Department of Biotechnology, to supervise Databanks and laboratories. Its board members will include the experts and officials from investigation agencies.
- The board will advise on the establishment of the DNA lab and Databank. It will grant accreditation to DNA laboratories and ensure the confidentiality of DNA profile information.
DNA Laboratories
- Accreditation will be required from the Board for DNA testing labs and can be revoked for non-compliance. Labs must follow quality assurance standards. Biological samples should be returned to the investing officer for its preservation after depositing DNA profiles for criminal cases.
Offences
- Penalties are defined for disclosing DNA information without authorisation. For example, the disclosure of DNA information is punishable by up to three years’ imprisonment and a fine up to one lakh rupees.
Purpose of the Bill
- To facilitate the recognition of missing minors and unidentified deceased persons, including those affected by disasters
- To capture recidivist criminals involved in grave offences like rape and murder
- To establish rigorous criteria and a quality assurance framework for endorsing and accrediting DNA profiling laboratories
- To govern the lawful application of DNA profiles to confirm identity in legal procedures, both criminal and civil
Joint Parliamentary Committee’s Take on DNA Technology Bill
While recognising the necessity of DNA legislation, the Joint Parliamentary Committee stressed on the importance of addressing concerns about misuse. It emphasised the creation of an ecosystem that upholds fundamental legal principles and promotes rigorous scientific standards, while ensuring the independence and professionalism of the DNA Regulatory Board.
Some of the important features of the Committee’s recommendations are as follows:
- The recommendations emphasised on the importance of enabling ecosystem for DNA profiling consistent with the Supreme Court judgments and the Indian Constitution.
- They highlight the key elements of a good judicial ecosystem, such as
- independent checks and balances at every stage of the process (police, prosecution, judicial service).
- adherence to the rule of law and procedural fairness.
- protection of rights against self-incrimination.
- prosecution to present all evidence, including evidence favouring the accused.
- access to independent investigators with evidentiary weight equal to police.
- well-developed system of independent labs and experts.
- well-trained judicial system experienced in handling scientific evidence.
- They emphasised on enhancing scientific rigour in courts and highlight the lack of extensive research and academic work on scientific evidence in India’s courts.
- They emphasised the need for creating an ecosystem that benefits from DNA evidence, allowing the legal system to appreciate its limitations and appropriate application.
- They advocated for widespread and intensive training to minimise errors and ensure the effective use of the DNA technology.
- They proposed that the statutory DNA Regulatory Board should be independent, avoiding an excessive presence of serving government officials.
- They addressed concerns about the potential misuse of the law to target specific sections of society and call for government reassurance both within Parliament and to the public to allay their fears.
Concerns Raised regarding the DNA Technology Bill
- There are worries about potential biases leading to discrimination based on caste, religion, or ethnicity such as targeting minority communities and reinforcing social discrimination.
- Privacy and dignity violation are vulnerable due to extensive DNA data collection in the absence of a comprehensive personal data protection bill.
- Guidelines for protecting personal data, particularly amid digital privacy concerns and consent mechanism are lacking.
- There are insufficient consent requirements in civil cases, affecting agency in disputes.
- Consent regulations for various DNA technology applications are not certain are not certain.
- There are concerns about expanding DNA profiling beyond sexual assault cases to other areas.
- How various stakeholders will implement the legislation within the mentioned domains is not clear. Additionally, the document encompasses violations under specific legislations, including the Immoral Traffic (Prevention) Act, 1956; the Medical Termination of Pregnancy Act, 1971; the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, among others.
- Biased data in artificial intelligence (AI) and databases which may lead to inaccurate outcomes and harm minorities.
- There is uncertainty about sensitive data handling by DNA laboratories, especially in combination with digitised data.
- There are biases and privacy concerns with facial recognition technology (FRT) in law enforcement.
- There is the need for oversight in linking forensic data with surveillance systems as insufficient standardisation and accuracy in forensic analysis may risk wrongful convictions.
- There is no clarity regarding the usage of data stored in DNA databanks.
- There is no mechanism to address challenges in partial DNA profiles, contamination, and investigator biases.
- There are chances of potential misuse by data laboratories hosting larger audiences’ DNA data.
- There is no emphasis on oversight and accountability to prevent DNA data misuse and profiling.
Conclusion
Amid the apparent setback of the DNA Technology Bill, an opportune moment arises for its revitalisation, calling for the infusion of precise guidelines to ensure the conscientious and reliable deployment of DNA technology within the broader legal framework. There is an urgent requirement to cultivate an environment where DNA profiling harmonises seamlessly with the constitutional principles, we hold dear.
Among the crucial recommendations advanced by the Joint Parliamentary Committee, a clarion call for safeguarding privacy echoes is prominent.
For the proposed DNA Regulatory Board to truly excel, it must transcend opacity and embrace transparency.
The meaningful amalgamation of DNA technology into the fabric of justice necessitates more than mere legal constructs. It mandates an all-encompassing educational endeavour including all stakeholders in the criminal justice spectrum, spanning from law enforcement personnel to legal practitioners. In parallel, a steadfast concentration on augmenting laboratory infrastructure emerges as a non-negotiable requisite to ensure the seamless realisation of DNA technology’s potential.
While the DNA Technology Bill currently languishes, its essence lies dormant, awaiting a rekindling. This interlude of opportunity compels not just resuscitation but an elevation of the Bill into a formidable bastion that unifies justice, privacy, and accountability within the dynamic contours of our societal evolution.
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