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‘Winston kept his back turned to the telescreen. It was safer, though, as he well knew, even a back can be revealing.’
-1984, George Orwell
What is DNA profiling
Every human being is inherently different from others. This is due to the fact that every person has a 0.9% difference in their DNA. Deoxyribonucleic acid (DNA) contains the main genetic structure for human beings. It provides instructions to an organism in order to survive. Almost 99.1% of the DNA of all the humans is said to be same, this making 0.9% of the DNA help in giving distinct identities to every human.
Many countries across the world have kept a database with profiles of their citizens which is based on their genes and DNA. This can be done through collecting saliva swabs, hair samples, blood samples etc. This is called as DNA profiling or creating a DNA bank. Processes of forensic and judicial importance could be impacted greatly due to the Bill but there have also been concerns raised due to the inherent nature of this Bill.
History of the DNA Bill
The DNA Technology (Use and Application) Regulation Bill, 2019 has been in works since 15+ years now. The Bill was first initiated to be drafted in 2003 and had completed drafting in 2007. It had been in discussion since that time and the plan to table the bill in 2015 went haywire due to widespread criticisms and rebukes against it.
In 2016, the final bill was made, listed and again discussed and debated upon. However, in the same year Andhra Pradesh decided to implement DNA profiling in its state, thus becoming the first state in India to do so.
In 2018, the Law Commission of India decided to prepare the draft bill of DNA Based Technology (Use and Regulation) Bill, 2018. This was then scrutinized and later introduced in the Lok Sabha in 2019. In 2021 it was introduced in Rajya Sabha and was discussed in the Parliamentary Standing Committee on Science and Technology.
International relevance of the Bill-
Through international documents such as International Declaration on Human Genetic Data1, there has been a sense of responsibility to countries holding DNA data of its citizens. As per the Declaration, the aim is to ‘ensure the respect of human dignity and protection of human rights and fundamental freedoms’ while collecting the DNA data.
As per INTERPOL’s Global DNA Profiling Survey Results 20162, 60+ countries already have an established DNA database to facilitate criminal cases. Some of these countries include United States, United Kingdom, China, Argentina, Canada. Apart from these countries, there are several other countries that have allowed DNA profiling only in serious criminal cases- France, Germany, Netherlands and India.
Issues with the Bill-
The Bill had been in news after the Parliamentary Standing Committee on Science and Technology laid down the fact that it could misused for certain issues like-
- Profiling based on religion/caste/community of people which would lead to further segregation of people in our society.
- Privacy concerns due to instances of mishandling of precious data. This issue has also been raised by many NGOs and Human Rights groups also.
- Misusing data for acts such as false encounters etc.
- Breach of privacy guaranteed under Article 21 and right of keeping private information about oneself private.
- Could foster/ give rise to a surveillance state if not properly handled/ managed.
Purpose of the Bill-
- The Bill aims to set up a system based on the profiling in order to facilitate search operations. The operation could be in case of a missing child/elderly, missing persons during natural disasters, cases of kidnap/abduction or,
- In case of bodies/missing persons that have been found. The system can help identify such found bodies or persons and therefore reduce the time taken and workload through this.
- In matters of disputes between a family, the DNA sample could be used to find out the relationships between members of a family, hence leading to a conclusive answer.
- Through DNA profiling, forensic scientists could analyse the DNA found at a crime scene and compare it to the DNA of the suspects. This could lead to faster ruling out of suspects and eventually a match, which could lead to speedy investigation.
- DNA profiles of suspects/ undertrials could also be made available after the requirement for the same has been ordered by the Court.
Provisions of the Bill-
Sources of DNA Sample- Some of the sources are sanctioned for procuring DNA samples by the DNA Laboratories-
- Crime scene evidences
- Any other sources prescribed
- The Bill lays down provisions for setting up of a Board by the Central Government called as DNA Regulatory Board. It shall contain members in the field of biological sciences, members of NIA (National Investigation Agency), NHRC (National Human Rights Council), Director General of Police of a State and other important members in the field of DNA fingerprinting & Diagnostics and Forensic Laboratory. This shall be for the purpose of-
- granting accreditation to laboratories.
- advising central state governments on issues relating to DNA banks and DNA data.
- supervising DNA banks and DNA Laboratories.
- recommend methods for optimum use of DNA techniques and technologies.
- for administration of justice.
- It has been mentioned in the Bill that only upon receiving accreditation from the Board can the DNA labs test, analyse and use the DNA testing technology. In case of failure of following certain protocols by the laboratories, the accreditation bound to get revoked. These reasons are-
- Failure to comply with the guidelines and condition which were subject to accreditation.
- Failure to comply with the provisions of this Bill.
- Failure to comply/ submit the books of account and audit reports as and when required by the Board.
Along with this, the Bill also lays down the obligation of DNA Laboratories –
- Doing routine quality checks and maintenance of information and labs.
- Following standards and protocols set.
- Sending information to the National DNA Bank as seemed necessary.
- Maintaining the infrastructure required for safeguard of the data.
- The Central Government shall establish National DNA Bank as well as State DNA Bank as necessary. The following indices shall be laid down for various categories of data-
- A suspect/ undertrials’ index
- An offenders’ index
- A missing persons’ index
- Unknown deceased persons’ index
- There are provisions under this Bill that mandates that the information kept in the Banks are not made available to other parties that are not concerned with the issue. It also talks about responsibilities of the Board such as to-
- Protect the information under this provision against accidental or intentional damage and loss.
- Implementing and enforcing appropriate security measures.
- Supervising all the Agencies that have been set up under this Bill and ensuring that appropriate technical and security are in place from time to time.
- Ensuring that the information in the DNA banks is used only for the purpose intended.
Also read: CPC, 1908: Inherent Powers of Court
Some of the purposes as mentioned in the Bill are-
- Easing solving of judicial proceedings
- Facilitating identification processes
- Facilitating civil cases/ disputes
- Helping accused as well as prosecution in a case
The data shall only be available to the authority concerned.
- The Bill also lays down certain provisions in case of misuse of the data or in the case of security breach.
- In case of an official, who wilfully discloses the protected data to a person who is not entitled to receive the same, is given a punishment for a term that may extend up to three years and also with fine which may extend to one lakh rupees.
- Whoever without authorization wilfully obtains data, shall also be punishable with term which may extend to three years and also with fine which may extend to one lakh rupees.
- In case of any individual tampering, destroying DNA data or causing any disruption in judicial process regarding the same shall be imprisoned for a term of five years and with a fine that may extend up to two lakh rupees.
Analysis and Conclusion-
It is important to view both the aspects with such an important bill that could change forensic history as well as privacy history. India needs a push towards speedy and advanced justice system. Many developed countries have had this technology for more than 20 years and it seems like India cannot ignore such an important technology. With proper implementation, cases which are piled up in courts could be solved instantaneously but with that being said, speedy justice can never be guaranteed due to many loopholes in the system and with so many concerns raised due to issues of privacy, security of the data and the assurance of protection of identity is also very valid. The Bill also seems directly conflicting Article 21 of the Constitution which is a fundamental right.
The Parliamentary Standing Committee on Science and Technology has recommended certain guidelines that could help diminish some of the concerns that are being raised. The Committee has suggested not to cover undertrials and suspects and the remaining concerns by aggrieved parties should be addressed by Government in a suitable and satisfactory manner.
In the end, the government needs to do a cost benefit analysis to weigh both pros and cons of implementing the Bill and draw out a path after having a dialogue with the parties that might get affected and that are involved in the process.
Author: Ashita Aggarwal, DES Shri Navalmal Firodia Law College, Pune
Editor: Kanishka Vaish, Senior Editor, LexLife India.