This article has been written by Subodh Asthana, currently studying in the second year of Hidayatullah National Law University, Raipur. The author of the article gives the overview of DNA Technology Bill which was tabled in Lok Sabha on Aug. 09, 2018.

Introduction

How a person proves his/her identity in today’s world? There could be multiple answers to this question. Some would say Aadhar Card because the tagline of Aadhar itself states so “Mera Aadhar Meri Pehchnan”, but does it actually tells the real identity of a person. I may actually forge many Aadhar Cards. According to a Survey in Bangalore, there were more Aadhar Cards in the region than the total population. Every identification technology in the World has some lacunae and discourses. But what I say is that let the identity of each person be his/her respective DNA. Apparently, DNA (Deoxy ribo Nucleic Acid) is the real identity of a person. A person can forge millions of Identity cards but in present times forging one’s DNA is not at all possible. DNA Technology Bill was tabled in Lok Sabha on Aug. 09, 2018 and it was passed from Lok Sabha in Jan. 08, 2019.

The Bill basically aims to regulate  taking the samples of persons involved in criminal matters which have been declared as offences in IPC, it also takes samples from people whose relatives (related by blood or by the way of affinity) are lost in any disaster or in any criminal act, therefore it could aid authorities to locate these people and return them to their relatives. However, there are some limitations of the bill which will be discussed in this article.

Highlights of the Bill

DNA technology bill was introduced in Lok Sabha on Aug.9, 2018 under the aegis of the Ministry of Science and technology.

  • DNA Technology Bill specifically aims at regulating crimes and thus it provides for collecting the DNA samples of people involved in criminal offences and civil offences with their consent. However, if a particular offence is listed as “specific offence” then the consent ground is not necessary. Specific offences are those offences in IPC in which punishment is more than 7 years of imprisonment or death sentence. The bill has also introduced several indices like a criminal, civil, missing person, etc. in which the DNA of a particular person will be stored. In case of Civil Indices, the matters based on Parental Dispute, Property Rights of Deceased Son/ Daughter, Establishing Parentage would be looked upon, on the other Missing person indices will have DNA samples of person who has been lost and therefore a complaint has been filed by a relative or a legal guardian.
  • The second chapter of the bill aims at establishing a DNA profiling board of 12 members with an ex officio chairman elected by government and a Vice-chairman of the board to be elected by the board after a cap of 25 years of experience in DNA fingerprinting has been fulfilled by a person, also the committee shall include the members of NHRC, DGP of State, CBI Director, Director of Banks and Accreditation laboratory.
  • It also aims at setting up of DNA banks and DNA laboratories in which DNA samples would be collected and the report of which would be specifically sent to DNA Banks which will look upon and verify all the samples collected by DNA laboratories. Also, DNA laboratories are authorized to collect DNA samples after receiving valid accreditation and recognition from the board.
  • It also has a provision that if a person whose sample is in a particular index viz. criminal, civil and missing person index wants to get his DNA sample destroyed can do so after addressing an application to the board and also if the court order states accordingly. If a person who is under trial and his/her sample has been collected, then the sample has to be destroyed after his acquittal, the testimony of which will be a court order.
  • If an investigation officer wants to match the DNA sample of an accused, then a proper court inquiry will be done by a Magistrate and only then the investigating officer will be allowed to access the sample of such person after making an application to the board.
  • The Bill also provides for punishment of person of DNA board and laboratory if there are wilful carelessness and negligence and also if the DNA sample of a particular person is disclosed by a laboratory or a person then a strict cognizance would be against them, and in case of prosecution resulting in proving guilty charges against a person, will attract a rigorous imprisonment 3 years and a fine.
  • Also, there is a provision of sharing of DNA reports to the foreign agencies and organizations if the permission of the same is ratified by the central government.
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Decoding The Bill

We understand that there are many countries like the USA, China, and the UK who have successfully enacted the DNA legislation and also the application of which has been very successful. In the case of all the three countries police is allowed to take the DNA samples at the time of investigation to make the process comparatively faster. All the investigative agencies in these countries have benefited in the investigative process to solve cases at a substantially faster pace. Therefore, there are some challenges which need to be analyzed before the enactment of the bill by Parliament. After the proper decoding and analysis of the bill, there are several problems which need to be resolved and therefore it needs to be sent to the standing committee for proper scrutiny.

Absence of adequate Privacy Legislations

  • Before the enactment of these types of bills, it is the foremost duty of legislation to adopt different privacy legislation so that there could be clarity no ambiguity on the provisions of these types of bill. There need to be comprehensive privacy regulations in order to make the application of the bill a feat.
  • There is a provision that in cases of person undertrials whose DNA will be stored in the DNA banks and after their release the data will be deleted but actually there is flagrant violation of the principle that “a person is innocent until proven guilty” because, till the time a person is under trial, the DNA sample will be in the custody of such banks for few decades till the prosecution is going on and could be misappropriated which is unconstitutional.
  • Also the sharing of DNA reports with foreign institutions is in itself the violation of privacy and security of an individual because there are no privacy regulations on which the bill will be based and there is a possibility that foreign institutions can misappropriate DNA sample by using the coding part of DNA which even tells you the medical problems and personal characteristics of a person.
  • Thus, it must look at whether the privacy of an individual is compromised.

Privacy Breach

  • A DNA strand which is the actual identification of the person and is the most the private constituent of the body. There is an apparent threat individual’s privacy and also it could be said to be in flagrant violation of article 21.
  • However, there are some appreciators of the bill who say that article 51(A) of Indian Constitution requires the state to promote scientific and technical methods or temper so as to assist the criminal system and investigation process in the country. The critics failed to analyze that if a particular law is against people liberty and privacy, then it must be repealed and also the fundamental rights hold more gravity than Directive Principles of State Policy. Therefore if any policy is against fundamental rights of an individual then it must be repealed and should not be enacted.
  • In the case of Ram Jhethmalani vs. Union of India, the Supreme Court held that privacy is an integral part of life and also a due process of law has to be followed so that the privacy of an individual is not at all breached.
  • Also in the latest Right to privacy judgement( KS Puttaswamy vs. Union of India), it was held by Supreme Court that privacy is the most important aspect of life and individual liberty and therefore after a tough scrutiny held that Right to privacy is the most essential element of Fundamental Right and therefore it can be said that if taking biological imprints of person like retina and fingerprints could be held as a privacy then why can’t taking a DNA sample be held so.
  • Also, there are provisions in the bill like section 35(b) which states that a person DNA could also be used for DNA training of the individuals whom the government will recruit as officials.
  • Therefore, there are various privacy concerns to the individuals whose DNA samples will be taken as there are apparent and justifiable reasons to show that privacy breach will be an issue juxtaposition to that of Aadhar data breach.

Separate Database for DNA

  • Also, there are various issues about the DNA Banks that all the index of DNA will be kept in a single database.
  • There must be a provision that a different database must be formed for civil matters because there is a probability that DNA data might get mixed and therefore it would cause too many difficulties.
  • Also so that the profiles of persons who are involved in criminal matters are not compared with that of the person in cases of civil matters.

No One Can Be Witness Against Himself

There is a legal maxim Nemo Debet Prodere Se Ipsum which means that no one can be a witness against themselves. Therefore it becomes a important point to discuss the issue juxtaposition to Article 20 (3) of Indian Constitution which states the principle of Self Incrimination and states that no one could be forced to be witness against one’s own and also there are multiple cases wherein the courts have allowed the DNA test but then too in rarest of the rare case.

  • In Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission, the apex court ruled that there can’t be any arbitrariness and despotic pressure on the person to submit the sample of DNA for DNA testing and therefore there must be a striking balance between the two so that it is not in violation of article 21.
  • Therefore, this principle has also been flagrantly violated by the drafter of the bill.

Cost Analysis

  • The taking of DNA samples and storing it in a DNA bank and laboratory is not an easy task, regular maintenance and capital are needed in order to keep it functional to its fullest capacity.
  • The government has said that capital of Rs. 25 crores would be enough in order to maintain and keep the DNA bank and laboratory functional.
  • But it would be really a chimera that such a costly setup could be maintained in such a meagre amount.
  • According to the reports of the UK DNA database in 2015-16, there was an annual expenditure of Rs.33, 95, 69,350. The figures specifically prove that the government has failed to perform an effective cost analysis pertaining to the requirements and maintenance needed.
  • Therefore, an effective financial assessment should be done by the government.

Security Concerns

  • DNA of a particular person can tell you about the identification of a person, his/her progeny, personal behaviour and even the characteristics of that person. It may even tell you the disease from which a person is suffering or will suffer in the future.
  • The bill which has been put forth by the ministry says that it must follow regulation and particular international standards, but these regulations and standards are nowhere mentioned in the bill and also not in any enacted act of the Parliament.
  • Also what will be the credibility of these DNA banks, like there could be instances where the reports of DNA testing could be tempered by any of the people and there is no clause for re-examination, it is one of the important questions which needs an answer.
  • According to the reports of the Home Ministry, there is very less number of people who are experts in collecting DNA samples and even the most basic samples from the crime scene. It is to be also noted that DNA samples are very sensitive and even a single form of contamination could damage the structure of DNA. Therefore this point has also to be taken into consideration.
  • Thus, there are various security concerns with the bill and thus there is a dire to send this bill to the standing committee or appoint a committee to look into the bill.

Conclusion

Although the bill mandates that it will be beneficial for the society, but it fails to undertake any such measures which avoid the privacy breach of an individual, it could be rightly said that it is incomplete in its structure and form, as it fails to give any regulations and standards which will be followed in order to make it a law, also there should be a provision that the samples of undertrials should not be taken just because the investigating agency/body wants it, a proper judicial inquiry must be a prerequisite. DNA is the personal identity of a person and a wrongful utilization of the same will result in breaching the identity of a person. Therefore strict sanctions are also required along with a proper and well-drafted bill in order to curb inconsistencies in it.

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