Key Highlights of Proposed Bill
- It allows law enforcement agencies to collect DNA samples, create DNA profiles and special databanks for forensic-criminal investigations. It states that all DNA data, including DNA samples, DNA profiles and records, will be only used for identification of the person and not for any other purpose.
- DNA profiling board:
- It creates DNA Profiling Board (DPB) that will be final authority that will authorise creation of State-level DNA databanks, approve the methods of collection and analysis of DNA-technologies. It makes accreditation and regulation mandatory for DNA laboratories.
- DNA banks:
- It allows the government to set up DNA data banks across India to store profiles. These banks will maintain a national database for identification of victims, accused, suspects, undertrials, missing persons and unidentified human remains.
- It also empowers the government to impose jail term of up to 3 years and fine of up to Rs. 1 lakh on those who leak information stored in such facilities. It prescribes similar punishment for those who seek information on DNA profiles illegally.
- Use of DNA Data:
- Under the Bill, DNA testing is allowed only in respect of matters listed in the schedule to the Bill (such as, for offences under the Indian Penal Code, 1860, for paternity suits, or to identify abandoned children).
- DNA Data Bank:
- The Bill provides for the establishment of a National DNA Data Bank and regional DNA Data Banks, for every state, or two or more states.
- The National Data Bank will store DNA profiles received from DNA laboratories and receive DNA data from the regional Banks.
- Every Data Bank will be required to maintain indices for the following categories of data: (i) a crime scene index, (ii) a suspects’ or undertrials’ index, (iii) an offenders’ index, (iv) a missing persons’ index, and (v) an unknown deceased persons’ index.
- Protection of information:
- It also ensures that the data remain protected from misuse or abuse in terms of the privacy rights of citizens.
- Under the Bill, the Board is required to ensure that all information relating to DNA profiles with the Data Banks, laboratories and other persons are kept confidential. DNA data may only be used for identification of the person.
- However, the Bill allows for access to information in the Data Bank for the purpose of a one-time keyboard search. This search allows for information from a DNA sample to be compared with information in the index without information from the sample being included in the index.
- Retention of DNA Data:
- The Bill states that the criteria for entry, retention or removal of the DNA profile will be specified by regulations.
- However, the Bill provides for removal of the DNA Data of the following persons:- (i) of a suspect if a police report is filed or court order given, (ii) of an undertrial if a court order is given, (iii) on request, of persons who are not a suspect, offender or undertrial from the crime scene or missing persons’ index.
- Further, the Bill provides that information contained in the crime scene index will be retained.
- DNA Laboratories:
- Any laboratory undertaking DNA testing is required to obtain accreditation from the Board. The Board may revoke the accreditation for reasons including, failure to: (i) undertake DNA testing, or (ii) comply with the conditions attached to the accreditation. If the accreditation is revoked, an appeal will lie before the central government or any other authority notified by the central government.
- Obligations of DNA Laboratories:
- Under the Bill, every DNA laboratory is required to perform various functions, including: (i) following standards for quality assurance in collection, storing, testing, and analysis of DNA samples, and (ii) depositing DNA samples with the Data Bank.
- After depositing the sample for ongoing cases, the Laboratory is required to return the biological sample to the investigating officer. In all other cases, the sample must be destroyed and intimated to the concerned persons.
Benefits of the Bill:
- 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 the data remain protected from misuse or abuse in terms of the privacy rights of our citizens.
DNA technology- significance and concerns:
DNA analysis is an extremely useful and accurate technology in ascertaining the identity of a person from his/her DNA sample, or establishing biological relationships between individuals.
- A hair sample, or even bloodstains from clothes, from a scene of crime, for example, can be matched with that of a suspect, and it can, in most cases, be conclusively established whether the DNA in the sample belongs to the suspected individual. As a result, DNA technology is being increasingly relied upon in investigations of crime, identification of unidentified bodies, or in determining parentage.
- But information from DNA samples can reveal not just how a person looks, or what their eye colour or skin colour is, but also more intrusive information like their allergies, or susceptibility to diseases. As a result, there is a greater risk of information from DNA analysis getting misused.
- It is expected that the expanded use of DNA technology would result not only in speedier justice delivery but also in increased conviction rates, which at present is only around 30% (NCRB Statistics for 2016).
Challenges with the bill:
- The draft statute, not only disregards the serious ethical dilemmas that are attached to the creation of a national DNA database, but also, contrary to established wisdom, virtually treats DNA as infallible, and as a solution to the many problems that ail the criminal justice system.
- This Bill fatally ignores the disproportionality of the DNA bank that it seeks to create, and the invasiveness of its purport and reach.
- It also conflates its objectives by allowing the collection of DNA evidence not only in aid of criminal investigations but also to aid the determination of civil disputes.
- Importantly, while consent is not required before bodily substances are drawn from a person accused and arrested for an offence punishable with either death or imprisonment for a term exceeding seven years, in all other cases a person refusing to part with genetic material can be compelled to do so if a Magistrate has reasonable cause to believe that such evidence would help establish a person’s guilt. Therefore, there’s no end to the state’s power in coercing a person to part with her DNA.
- In Justice K.S. Puttaswamy (Retd) v. Union of India declared that the Constitution recognizes a fundamental Right to Privacy. But, it is unclear whether the proposed bill is compatible with the Right to Privacy or not.
- The Bill’s failure to place sufficient checks on the use of DNA evidence collected in breach of the law makes the process altogether more frightening.
- The Schedule lists civil matters where DNA profiling can be used. This includes “issues relating to the establishment of individual identity.” DNA testing carried out in medical or research laboratories can be used to identify an individual. It is unclear if the Bill intends to regulate such laboratories.
- The Bill requires the consent of the individual when DNA profiling is used in criminal investigations and identifying missing persons. However, consent requirements have not been specified in the case of DNA profiling for civil matters.
- DNA laboratories are required to share DNA data with the Data Banks. It is unclear whether DNA profiles for civil matters will also be stored in the Data Banks. Storage of these profiles in the Data Banks may violate the right to privacy.
- DNA laboratories prepare DNA profiles and then share them with DNA Data Banks. The Bill specifies the process by which DNA profiles may be removed from the Data Banks. However, the Bill does not require DNA laboratories to remove DNA profiles. It may be argued that such provisions be included in the Bill and not left to regulations.
- DNA profiling should be undertaken exclusively for the identification of a person and should not be used to extract any other information.
- The state must show that there exists a legitimate reason for extracting DNA evidence and that the extent and scope of such extraction do not disproportionately contravene a person’s right to privacy.
- To enact the law in its present form would only add a new, menacing weapon to the state’s rapidly expanding surveillance mechanism. The government should not allow the benefits of science and technology to be privileged over the grave risks in allowing unrestricted access to deeply personal material.
- Maintenance of strict confidentiality with regard to the keeping of records of DNA profiles and their use should be considered a priority.