DNA Technology (Use and Application) Regulation Bill, 2019 was introduced in the Lok Sabha in 2019. This bill aims to promote and regulate the use of DNA technologies for better delivery of justice.
This article aims to discuss the Bill in detail and also provides for a background on what was the need for the regulation and its development from 2003-2019.
Some professionals have argued against the bill, a few of which have also been included in the article. Finally, the current position of DNA Profiling regulations in other countries is discussed in the article in brief.
- Perpetrator- A person who carries out a harmful, illegal, or immoral act.
- Accreditation- The action or process of officially recognizing someone as having a particular status or being qualified to perform a particular activity.
- Filip- Something which acts as a stimulus or boost to activity.
DNA or ‘deoxyribonucleic acid’ is a hereditary material that is present in all living organisms. It is a molecule composed of two polynucleotide chains that coil around each other to form a double helix carrying genetic instructions for the development, functioning, growth, and reproduction of all known organisms and many viruses. However, its structure varies from person to person and no two persons can have the same DNA.
This attribute of DNA of being unique for every individual is therefore used by the forensics to identify a person, by using DNA extracted from the person’s hair, saliva, blood, bones, skin, or semen. This process is formally termed as ‘DNA Profiling’ or ‘DNA Fingerprinting’. This technique is used to identify the perpetrators by matching their DNA to the one that is obtained from the crime scene.
DNA Technology (Use as Application) Regulation Bill, 2019, aims to regulate and provide the guidelines for the use of such technologies. With the growing importance of DNA evidence in criminal as well as civil cases, it was felt that such legislation was long overdue.
Need of the Bill
The primary intended purpose of “The DNA Technology (Use and Application) Regulation Bill, 2019” is for expanding the application of DNA-based forensic technologies to support and strengthen the justice delivery system of the country.
The utility of DNA based technologies for solving crimes, and identifying missing persons, is well recognized across the world. By providing for the mandatory accreditation and regulation of DNA laboratories, the Bill seeks to ensure that with the proposed expanded use of this technology in the country, there is also the assurance that the DNA test results are reliable, and that the data remain protected from misuse or abuse in terms of the privacy rights of the citizens.
The proposed Bill will give a fillip to the development of a uniform code of practice in all laboratories involved in DNA testing throughout the country.
While introducing the bill in the Lok Sabha, Dr. Harsh Vardhan (the then Minister for Science and Technology) stated that “Recognizing the need for regulation of the use and application of Deoxyribonucleic Acid (DNA) technology in the country, The DNA Technology (Use and Application) Regulation Bill – 2019, has been formulated for establishing the identity of missing persons, victims, offenders, under trials and unknown deceased persons.”
The idea for legislation to regulate the usage of DNA technology was first proposed by the Department of Biotechnology (DBT) in the year 2003. The DBT set up a DNA Profiling advisory committee to give recommendations for the draft of the bill. This draft was then completed in the year 2007, and called the ‘Human DNA Profiling Bill, 2007’. However, it was never introduced in the Parliament and underwent further changes till 2012.
Thereafter, in January 2013, the Government created an expert committee to deliberate on the draft of 2012. After finishing it up in the late 2014s, it was circulated through the ministry of Science and Technology and the government wanted to introduce the bill in the Parliament, but couldn’t do so because of the criticism over privacy and data security issues.
Later, in 2016 the bill was listed for introduction and consideration in the Parliament, and in 2018, the Law Commission in its 271st report came out with the draft of the bill, named ‘The DNA based Technology Regulation Bill 2017’, which was finally presented in the Parliament in the year 2019.
· DNA Regulatory Board
The proposed Act provides for the establishment of a ‘DNA Regulatory Board’, which will regulate and advise the government on issues related to the functioning of the DNA laboratories and the DNA data banks. The board is also authorized to grant accreditation to these laboratories. Further, according to section 3(2), 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.
Section 4(a) also provides that the Secretary to the Government of India in the Department of Biotechnology shall be the ex-officio Chairperson of the board.
Other provisions relating to the composition, terms, and conditions of service, meetings, functions of the board, the term and resignation of employees, etc are provided in Chapter II of the said bill.
· Accreditation of the DNA laboratories
The bill prohibits DNA testing, analyzing, or any other procedure to generate data and perform analysis relating thereto, without obtaining accreditation from the DNA Regulatory Board. It provides that the Board may, within ninety days from the receipt of the application for accreditation or renewal thereof, and after inspecting the laboratory, its records and books, and on being satisfied that the laboratory fulfills all requirements under this Act, by order, grant accreditation to such laboratory or renew it, subject to such conditions as it may deem fit.
The bill further provides that the accreditation shall be valid for two years. This accreditation can also be revoked by the board in cases specified in section 15 of the bill.
· Sources and Manner of Collecting
Section 21(1) states that no bodily substances shall be taken from a person who is arrested for an offense (other than the specified offenses) unless the consent is given in writing for the taking of the bodily substances. It further provides that for this sub-section, “specified offenses” means any offense which is punishable with death or imprisonment for a term exceeding seven years.
In case the consent is not given, the person investigating the offense may apply to the Magistrate to order the collection of such bodily substances.
The samples for DNA testing may be collected only from the sources specified in Section 23, which include, bodily substances; scene of occurrence, or scene of the crime; clothing and other objects; or such other sources as may be specified by regulations. It also provides that ‘intimate bodily substances’, like blood, semen, urine, pubic hair, etc shall be collected only by medical practitioners.
· DNA Data Bank
The bill seeks to establish a ‘National DNA Data Bank’ and ‘Regional DNA Data Banks’ for every State, or two or more States.
It is provided that every DNA Data Bank shall maintain indices for various categories of data, namely- a crime scene index; a suspects’ index or undertrials’ index; an offenders’ index; a missing persons’ index; and an unknown deceased persons’ index.
The bill also provides that the Director of the National DNA Data Bank shall be a person of eminence possessing the prescribed educational qualifications and experience in biological sciences. The director shall exercise such powers and perform such duties as may be specified by regulations.
· Offenses and Penalties
The bill provides for imprisonment for a term which may extend to three years and a fine of up to one lakh rupees, to a person who has access to the DNA information and who willfully discloses such information to another person or agency not having authority to receive it. It also specifies that whoever, knowingly and intentionally, destroys, alters, contaminates or tampers with biological evidence, intending 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 two lakh rupees.
Other provisions of Chapter VIII further provide penalties for obtaining information or for using DNA sample or result from DNA Data Bank without authorization and also in case of unlawful access to information in DNA Data Bank, etc.
Arguments in favor of the Bill
- It ensures privacy of the DNA information, as the bill provides for punishment in case data is disclosed to unauthorized persons. Therefore, there are fewer chances of misuse.
- The bill aims to regulate DNA Profiling in the Country, therefore it helps in better delivery of justice as proper procedures and regulations provided in the bill will be followed by the authorities.
- The bill also provides for a uniform system of procedures throughout the country by the way of National and Regional DNA Data Banks
- By providing for mandatory accreditation of the DNA laboratories, the bill ensures reliability of the results of DNA related technologies.
- It promotes the use and application of DNA based forensic technologies.
Arguments against the Bill
- Many critics argue that the bill is a violation of human rights, as the individual’s details and DNA profile will be stored with the State. This comes in light of the judgment by the Supreme Court of India in which, the Court declared ‘Right to Privacy’ as a fundamental right.
- While the DNA of a person can establish the identity of that person, its analysis can also reveal information related to his physical and medical characteristics, which can affect his privacy.
- The bill provides that DNA Profiling can also be used in civil matters like surrogacy, maternity or paternity check, organ transplantation, and immigration. However, there is no specific mention of the manner of use of such DNA profiles in these civil matters, like, whether they can be stored in the DNA Data Banks, etc.
- The Law Commission in its report on the draft Bill of 2017, stated that only the portion of the human DNA which provides identity information will be used for profiling. However, this is not specified in the Bill.
DNA Profiling in other Countries
- Over 60 countries have made legal provisions for the use of DNA technology to investigate criminal cases. These countries include Argentina, United States, China, Britain, and Canada.
- DNA Profiling is allowed only in serious criminal cases in the Netherlands, Germany, France, and Austria.
The advancement in forensic based technologies has made it easier to identify a person by the process of ‘DNA Profiling’. This technology can thus help in providing better evidence in the Courts and prove the guilt of the accused. The DNA Technology (Use and Application) Bill, 2019, if it is approved, can prove to be the ‘game-changer’ for the justice system in India. It would help in the identification of the offenders and provide timely justice to the victims. The use of DNA data is also likely to be useful in quickly identifying missing persons and resolving criminal cases in which repeat offenders might be involved.
However, there are still some concerns relating to the privacy of data stored in the data banks. The government needs to consider these and ensure that such concerns are taken care of.