This article has been written by Rishabh, B.A. LL.B. (Criminal Law Hons.), National Law University, Jodhpur.

Abstract

The object of this paper is to analyse the DNA Technology (use and application) Regulation Bill-2019 by analyzing the current position of law in regard to use of DNA. This paper also analyze the question that what is a DNA and how is it relevant in current legal system. Further, the paper analyze the existing legal provision which are mentioned in other statutes and finally the paper discuss the provisions of the bill,  how it is beneficial for the society and how it will harm the rights of the people.

The greatest single achievement of nature to date was surely the invention of the molecule DNA

-Lewis Thomas

Introduction

The DNA (Deoxyribonucleic Acid) is a complex molecule which contains all the information necessary to build and maintain an organism. The DNA isn’t present in red corpuscles of blood, its presence can be traced in white corpuscles of blood and all the living things have DNA. It appears like a twisted rope ladder or in the double helix structure.  DNA can be extracted from saliva, hair, blood, bones, semen and from other organs of the body. Its structure varies from personality to personality and each and every living individual have a unique DNA.

The DNA of every person is unique in itself, and variation in the sequence of DNA can be used to match individuals and identify them[1]. In a current technological world this technique (DNA Technique) helps the identification of criminals on the scientific lines. The DNA techniques is basically made up of amino acids and it is matched with the bases which provide the key to determine the genetic blueprints of a living being.

History

In the year 1985, first time the DNA evidence accepted by the Indian courts. But, it was not till January 2019 that a bill on the issue of DNA was first time introduced in parliament. The idea to draft a DNA bill regulating the use of DNA samples for crime related reasons was advanced by the Department of Biotechnology in 2003[2]. The department of biotechnology established a DNA profiling advisory committee to make recommendations for the drafting of the profiling bill 2006 and from 2003 to 2007, after four years of effort which eventually became the Human DNA Profiling Bill, 2007.

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In the year 2007, the draft Human DNA profiling bill was made public. But, it was never introduced in the Parliament and in January 2013, the government through the Department of Biotechnology created an expert committee to deliberate on concerns raised about the bill and to examine the 2012 draft by finalizing the text.

After finishing it up in late-2014 they have circulated the draft within the Ministry of Science and Tech. for their comments and in 2015, the government planned to present the bill in the monsoon session of parliament but it wasn’t presented due to too much criticism over privacy and data security issues.

Later, in 2016 the bill was listed for introduction, consideration and passing. And in 2018 the Law commission of India report in its 271st report prepared the draft bill named the DNA based technology bill 2017. Which was presented in parliament in 2019.

Indian legal system

In the legal arena DNA analysis has become one of a common form of evidence in a criminal trials and so many countries have specific laws over it. It is not only restricted to criminal cases, it is also used in civil cases (e.g. for determination of paternity of identity). Although, till now there is no specific legislation which can provide specific guidelines about the need and use DNA in investigation. Moreover, there is no specific legislation/provision under Code of Criminal Procedure, 1973 and Indian evidence Act, 1972 to manage forensic science, technology and science issues under a criminal trial.

Under article 51A (h) and (j) of The constitution of India it is provided that “it shall be the duty of every citizen of India- to develop the scientific temper, humanism and the spirit of inquiry and to strive towards excellence in all sphere of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement”

Section 53[3] of Code of Criminal Procedure (Examination of accused by medical practitioner at the request of police officer) authorizes a police officer to get the assistance of a medical practitioner in bona fide manner for the purpose of the investigation. But, it doesn’t allow a complainant to collect blood sample, semen, etc. for bringing the criminal charges against that particular person/accused. The Code of Criminal Procedure (amendment) Act, 2005 has brought two new section in Code of Criminal Procedure which authorizes the investigating officer to collect DNA from the body of the accused and the victim of a case. 

Though the explanation to Section 53, 53A and 54[4] of the CrPC, 1973 was amended in the 2005 to clarify the scope of medical examination of the accused, particukarky with regard to the extraction of bodily substances, and specifically to use of DNA profile technique. In the case of Krishna Kumar Malik vs State of Haryana[5] the Supreme Court said that after the incorporation of Section 53(A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned council for the respondent-state, it has become necessary for the prosecution to go in for DNA test in this kind of cases, facilitating the prosecution to prove its case against the accused. Before 2006 even without the aforesaid specific provision in the Cr.P.C. prosecution could have still resorted to the present procedure of obtaining the DNA test or analysis and matching of semen/bodily fluid of the appellant with that found on the undergarments of prosecutrix to make it a fool proof case.

Indian Evidence Act also provide certain provisions such as Section 112[6] (birth during marriage, conclusive proof of legitimacy) which determine child’s parentage and states that a child born in a valid marriage between a mother and a man within 280 days of the dissolution of the marriage, and the mother remaining unmarried shows that child belongs to the man, unless proved otherwise but again there is no specific provision which would cover modern scientific techniques. DNA analysis is proved very important in determining the paternity of a child in the cases of civil dispute. Need of this evidence is most significant in the criminal cases, civil cases, and in the maintenance proceeding in the criminal courts under section 125[7] of CrPC.

In the Indian legal arena, the legal position of forensic technique has to pass through a three-fold litmus test viz.

  1. What is constitutional validity of such test?
  2. What is the evidential value of the forensic information Obtained from the experts?
  3. In the absence of any concrete legislation what stand is taken by the judiciary regarding admissibility of DNA forensics?

Bill of 2019

The DNA technology Regulation Bill 2019, which is also known as the DNA profiling bill has been formulated recognizing the need for regulation of use and application of deoxyribonucleic acid technology for the use of DNA technology to establish the identity of an individual. According to government it will be a game changer in the criminal cases or the cases which is related or rely on the scientific evidence for speedy trial.

The DNA technology bill aims to establishing identity of missing person, offenders, victims, person who are under trial and unknown deceased person. The main purpose of this particular DNA technology bill is to expand the application of DNA- based forensic technologies to support and strengthen the justice delivery system of the country. The bill is also expected to fast-track criminal cases where DNA evidence could be prove conclusive[8]. Except criminal cases the bill also allows the use of technology to establish the identity of persons in the matters of parentage dispute, immigration and transplantation of human organs[9]

Provisions of the bill

  1. The bill seeks to establish a ‘national data bank’ and ‘regional data banks’ for every state, or for two or more than two states[10]. The labs are required to share DNA data with the national and regional DNA data banks. 
  2. The bill said that every data bank will maintain the indices for the  following categories[11]:
  • The crime scene index
  • An offender’s index
  • A suspect’s index
  • An under trials’ index
  • Missing person’s index and
  • An unknown deceased persons’ index
  1. The bill also seeks to establish a DNA regulatory board, and the board will called the ‘DNA regulatory board’[12]. The board will supervise the data banks and laboratories, further the board shall be a body corporate, having perpetual succession and a common seal, which is subject to the provision of this particular act, to acquire, hold and dispose of property, and to contract, and shall, by the said name, sue or to be sued[13]. Further it also said that the ex officio chairman of the board will be the Secretary of Department of Biotechnology. 

The regulatory board will comprise-

  • Director General of the National Investigation Agency and the Director of the CBI, and
  • Experts in the field of biological sciences.
  1. The bill provides for the ‘removal of DNA profiles’ of suspect on the filing of a police report or court order, and of under trials on the basis of a court order. The profiles in the crime scene and the index of missing person will be removed on a written request[14].
  2. The bill also provides that any laboratory undertaking DNA testing is required to obtain accreditation from the Board itself.  The Board can revoke the accreditation for several reasons including the failure to:  
  • Undertake DNA testing, or 
  • Comply with the conditions which are attached to the accreditation. If the accreditation is revoked by the board, an appeal will lie before the central government or any authority notified by the central government. 

 Further, it is also necessary for every DNA laboratory to follow standards for the quality assurance in collection, storing, and analysis of samples of DNA.

  1. The bill allow DNA testing only in respect of matters listed in the schedule to the bill. 
  2. The bill also proposes a provision related to a ‘written consent’ of an individual to be obtained before collection of their DNA samples[15]. The victim as well as convicted or under trial person must give their consent in written. However, such consent is not required for the offences which include the punishment of more than seven years in prison or in case of DNA profiling for civil matters.
  3. The bill also specifies the penalties for different offences which includes-
  • For disclosure of DNA information.
  • For using DNA sample without authorization
  1. The bill further provides that the disclosure of DNA information will be punishable with imprisonment of up to three years and fine of up to one lakh Indian rupees[16]. And Whoever, knowingly and intentionally, destroys, alters, contaminates or tampers with biological evidence which is required to be preserved under any law for the time being in force, with the intention to prevent that evidence from being subjected to DNA testing or to prevent the production or use of that evidence in a judicial proceeding, shall be punishable with imprisonment for a term which may extend to five years and also with fine which may extend to 2 lakh rupees[17].

Arguments in favour of the bill

  1. By this bill the individual privacy is ensured as the data banks will not allow to release any information without any formal requisition. The person who is in need of DNA process i.e. investigator has to go through a formal requisition process. 
  2. The pattern of DNA will be kept only in DNA banks and can be used only whenever it is required for any purpose of national interest, forensic interest and police interest.
  3. The DNA profile of a person will be kept in a government run regulatory body with some terms and references so that, there is a least chances of any misuse.

Arguments against the bill

  1. The bill is in violation of human rights as it is in conflict with the privacy of the individuals, because all the details of the individual person’s body and his DNA profile will be with the state. Even though the Supreme Court has recognized the right to privacy as a fundamental right. In Justice K. S. Puttaswamy and Ors. vs Union of India and Ors[18], case, The Apex Court has interpreted the Constitution to include ‘right to privacy’ as a fundamental right. The court said that this right may be infringed only if three conditions are met. Which are:
  • There should be a law;
  • The law should aim to achieve a public purpose, and
  • The public purpose should be proportionate to the infringement of privacy

Since the storage of DNA profiles for civil matters in the Data Banks may not serve the public purpose, it may violate the fundamental right to privacy.

  1. There is no clarity on some matters. The schedule lists civil matters where the DNA profiling can be taken in use. This includes the issues which are related to the establishment of an individuals’ identity. 
  2. The bill is also unclear on privacy issues that whether the DNA profile for civil matters should also store in the DNA data banks.
  3. Under the Bill, a DNA profile is defined as the result of analysis of a DNA sample for establishing the identity of a person.  A DNA sample of an individual can provide additional information with regard to that individual other than his identity.  The Bill does not clearly specify that information other than identity will not be included in a DNA profile.  
  4. While the DNA of a person can establish the identity of a person, its analysis can also reveal information related to his physical and medical characteristics, which can affect his privacy.  Because of this, DNA profiling to establish the identity of a person is done using a specific portion of the DNA that does not reveal any additional information about the individual.  This practice is followed in several countries including the United States of America and United Kingdom[19]. Laws in countries such as South Africa and Ireland specify that the DNA profile will not contain information related to medical or physical characteristics of the individual[20] Note that the Law Commission in its report on the draft Bill of 2017, stated that only the portion of the human DNA which provides information on identity will be used for profiling.  However, this is not specified in the Bill.    

Conclusion

The DNA technology (use and application) regulation bill-2019 can be an evolutionary legislation in the Indian legal system because as the government said, it well fast-track criminal cases where DNA evidence could be prove conclusive.  In the cases of rape and other criminal offences where there is only DNA evidences are present it will provide too much assistance for fetching the justice. There are so many countries in the world which are using the DNA technology for tracking criminal offence and the criminal in which Europe is on the top in applying the DNA technology in the very successful manner. 

Though, the bill is clear on some extent but it is not clear on the issue of privacy and consent which is the fundamental right of a person and which can’t be terminated.

Endnotes

[1]  “DNA Technology in Forensic Science”, Committee on DNA Technology in Forensic Science, United States of America, 1992.

[2] Lok Sabha Passes DNA Technology Bill-All you need to know, The Wire, available at: https://thewire.in/the-sciences/lok-sabha-passes-dna-technology-bill-all-you-need-to-know [Last accessed on 25th august 2019]

 

[3] The Code of Criminal Procedure, 1973

[4]  Ibid

[5] (2011) 7 SCC 130

[6] Indian Evidence Act, 1872

[7] Supra. 3

[8] Ibid

[9] Lok sabha passes the DNA technology bill, the hindu newspaper, printed on 8 jan 2019. available at: https://www.thehindu.com/news/national/lok-sabha-passes-dna-bill/article25940769.ece [Last accessed on: 30th August 2019].

[10] Clause 25(1), chapter-V, The DNA Technology (use and application) Regulation Bill-2019

[11] Clause 26(1), chapter-V, The DNA Technology (use and application) Regulation Bill-2019

[12] Clause 3(1), chapter-II, The DNA Technology (use and application) Regulation Bill-2019

[13]  Clause 3(2), chapter-IV, The DNA Technology (use and application) Regulation Bill-2019

[14] Clause 31(3), Chapter-V, The DNA Technology (use and application) Regulation Bill-2019

[15] Clause 23(2), chapter-IV, The DNA Technology (use and application) Regulation Bill-2019

[16] Clause 45, chapter-VIII, The DNA Technology (use and application) Regulation Bill-2019

[17] Clause 49, chapter VIII, The DNA Technology (use and application) Regulation Bill-2019

[18] AIR 2017 SC 4161

[19] Maryland vs King, Supreme Court of the United States, October 2012.; see, National DNA Database, NDNAD Strategy Board, Annual Report 2007-09, United Kingdom

[20] Section 36A(1)(fC), Criminal Procedure Act, 1977, South Africa; Section 2(1), Criminal Justice (Forensic Evidence and DNA Database System) Act, 2014, Ireland

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