Of late in 2019 the DNA Technology Regulation Bill got passed by the Lok Sabha but it was sent to Parliamentary Standing Committee so that committee can scrutinise it and make some observations. So I am going to delve into the detail of that thing itself that what this Bill is all about, What are the benefits of having this bill enacted, what are its shortcomings and what are the ways to deal with those shortcomings. And I will also be touching on the International aspect of this DNA Profiling technology as well, as how this technology has proved to be successful in other countries and which is why India should also have this kind of technology.
WHAT IS DNA-
DNA[ Deoxyribonucleic acid] is a kind of hereditary material present in every human body and living organism. DNA gets transferred from the parents to their offsprings . DNA is present in each cell of our body and all are identical. And inside the Cell, DNA is majorly found in the Nucleus and to some extent in Mitochondria as well. DNA contains an Information in the form of a Code, which comprises of Four Chemical bases- Adenine, Thymine, Guanine, Cytosine. On the basis of these 4 bases DNA of any person gets prepared and almost 99 percent of the DNA is analogous in all Human Beings and it is an interesting fact that only the remaining 1 percent creates the difference and owing to which all human beings do have different identity.
WHAT IS DNA PROFILING-
In 1985, British scientist Alec Jeffrey discovered the modern technique of DNA profiling. DNA Profiling (also known as DNA fingerprinting) is a procedure through which the identification of a person is done. DNA profiling is the technique through which any unknown person’s identity can be gauged by taking biological samples from- skin, hair, blood, saliva droplets etc. As there is a DNA in every cell of our body, so if any biological sample is found, then DNA of any human can be easily extracted from them. If a DNA sample is taken, then a special DNA profile will be formed on the basis of it, because the DNA that is yours will not be that of any other human being.
- Let us see what are the AUTHORITIES establishes under Draft DNA Profiling Bill.
So the Draft Bill talks about National DNA Databank as well as DNA Profiling Board. National DNA Databank has the function of collecting data from the offender , suspects , missing persons, unidentified dead bodies. They are also responsible for profiling and storing the DNA. And there is another responsibility associated with it that, the data has to be made available to the accused or to the suspected persons. So this is the utility of DNA PROFILING BANK.
DNA Profiling Board is responsible for defining standards and controls regarding the DNA Profiling. This Board is a decision making Body and this will define the standards and will control DNA Profiling. Another responsibility of this Board is to certify the Laboratories. And also according to the Bill DNA Profiling Board will be established both at the National and the state level.
BENEFITS OF THIS BILL-
- It will help in Criminal Investigations. As we know that DNA is unique so when you profile the DNA it becomes easier for the investigative officers to find the criminals.
- This will also help in establishing Blood Relations. In case the person is missed or if somebody has to find blood relation, it is easy through the DNA Profiling to establish Blood Relations because it is shared by one’s ancestors.
- It will help in tracing the Medical History of a person. And this will also facilitate the Medical Research.
- DNA profiling can also be used for Law Enforcement. If you are collecting a blood of a person then it can be stored only for a certain period of time, because after a particular period of time it starts losing its utility. But that is not the case with DNA because it can be stored or it can remain for an endless period of time. So this will eventually help in investigations and in forensic search also. So in the long run it can better enforce Law in the society.
- It will also help in Disaster Victim identification. In case of disasters sometimes we only get a part of the dead body or only a part of the remain will be collected so in that case it becomes much more difficult to identify the person or to identify that whom the remain belongs to. So in such cases DNA profiling will act as a panacea in order to identify the persons. And if you are able to identify the person or whom the remain belong to, then authorities can easily issue the Death certificate also. So issuance of Death certificate is also very important because only in case when you identify the person as dead it is easy for the law enforcement agencies also, otherwise it can be misused. According NCRB about 1 lakh children in our country go missing, so this bill can help to find those children and other missing dead bodies as well.
- There are certain Emotional factors that are attached with the death of a person. Like in India if we see, people do certain final rites or cremation. In case if you are not sure whom this body or remains belong to then final rites cannot be done.
- So this bill has so much of utilities and still our country does not have an any existing legal provisions regarding the profiling of DNA. As there are nearly 60 countries in the world, who already have this kind of Legislation to deal with DNA Profiling technology. Moreover USA came up with this Law in 1994 itself. And this is one of the biggest reasons that the criminals get apprehended so fast and identification processes also gets completed in a very short period of time in USA.
Now let’s see what are the laws that are prevailing in other countries regarding the DNA Profiling.
USA– In USA, Federal Bureau of Investigation has designed a Combined DNA Index System. This amalgamates Forensic sciences and computer technologies for sorting crimes. So in USA they have adopted an appropriate technology of DNA Profiling.
ARGENTINA– In Argentina the National Criminal Procedure Code was amended in 2009 in order to give a uniform approach to DNA testing in cases of Illegal adoption.
CANADA– In Canada also a DNA Identification Act has been passed and under the Act they have a DNA Bank and they have also amended the Criminal Code.
So these are only some examples. There are several countries that have adopted appropriate laws in order to comply with the DNA Profiling. So Indian should also have similar laws governing DNA Profiling. From these International examples we understand that DNA profiling is really necessary and also much needed.
We have seen many utilities and positive aspects of this Bill but are the reasons we are not able to pass this bill so Now let’s look at the factors that pulled us back to enact this Bill as an Act.
- It has also been argued that DNA profiling is also in violation of a Privacy of a person. In India privacy or right to privacy is one of the hotly debated issue. So there can be Breach of data, data theft or data can be misused. Such concerns are with the general public. As there is a provision in a Bill which allows for the profiling of suspects, victims, undertrials, means they are not convicted but then also they will be subjected to the procedure of Profiling for future investigation.
As Privacy has been declared to be the Fundamental Right of a person by the Apex Court of India in KS PUTTASWAMY VS UNION OF INDIA Case.
- Draft Bill is not complete or it does not give the complete picture of what is going to happen. Such as- Draft Bill has no special provision with respect to Funding. So how these Data Banks or boards will be established, What will be the Composition of the Board, From where the Financial Resources will be mobilised for the enforcement of this Act.
- As we have seen that how in criminal investigation or in law enforcement DNA Profiling can be used. But the Bill does not say that at what stage the DNA samples can be collected.
- There are many Offenders, victims, persons who become homeless in a Disaster and if we have to make a proper identification of these person then we require a proper legislation to regulate this procedure in an efficient manner.
- And one of the important observations is that- The Bill can be misused for CASTE BASED PROFIFLING. And apart from it when DNA Profiling will be done then there are many extremely Sensitive information related to an individual like- skin, colour, behaviour, illness etc. And unfortunately if these sensitive information get into hands of a wrong person who can misuse it, then that can create a huge problem.
- It could even be used to set up a linkage of Criminal activities with a particular caste or community. Means through the profiling a data can be extracted that this is a community the people of which are engaged in a lot of criminal activities. So a kind of taboo or stigma can be attached to a particular caste or community. And this will be insidious for the integration of our society.
- Then Draft Panel says that Profiling of a convict is reasonable step but there is no moral justification in doing the profiling of Undertrials, victims and their relatives.
- Bill says that the written consent of the person whose profiling needs to be done will be taken but this consent is just for the namesake. Because if the person does not give the consent for the same then his consent can be overturned by the Magistrate.
- There is no mention of how long the authorities can keep the DNA that will be found from the crime scene. So it involves a danger that the database may fall into the wrong hands. We can also say that it in some way violate the right to Privacy which is a fundamental right of every citizen under article-21. So to overcome this problem there should be an independent scrutiny as to how long the database should be kept and when we should destroy it.
WAYS TO DEAL WITH THE SHORTCOMINGS –
- As we have seen that there is an issue of Privacy and there can be a misuse of DNA . There should be safeguards to prevent illegal collection and use of DNA.
- There must be a provision in the Bill providing for the proper mechanism using which the citizens can appeal against the retention of Data.
- As we have seen that DNA samples are used in Criminal Investigation and also for Law enforcement purposes, so citizens undergoing trial are also required to give their DNA Samples according to the bill. That is why there should be a provision in a bill providing for a mechanism under which the citizens undertrial can request for fresh sample collection.
- If suppose person- (A) voluntarily gave his DNA Sample but at some point of time he feels that his privacy is getting harmed and he wants to withdraw his sample. But according to the Draft Bill there is no provision for Withdrawal of the sample. Therefore there should be a provision in the bill providing for withdrawal of the sample.
- The purpose of the Sample collection should be Publicly stated. As DNA samples can be collected for various purposes like- criminal investigations, law enforcement or to identify certain persons etc. So whatever the purpose be it must be stated publicly as this will ensure transparency and can also prevent the misuse to a certain extent.
- There should be an Annual report that should be released by the DNA PROFILING BOARD in order to bring transparency and the general public should know that- what is happening, what are the Achievements and utilities. So in order to get updates for the general public also an Annual report must be published.
- MALIMATH COMMITTEE also made a recommendation for amendments in the CrPC in order to comply with the DNA Profiling.
- Law Commission in its 271st report also made two Recommendations-
- DNA PROFILING BOARD must be given a Statutory Status.
- There should not only be National Data Banks but there should also be Regional Data Banks.
- We know that sometimes for Law enforcement and for identification of dead persons, we have to share the DNA Profiles with Foreign Government or foreign institutions. So therefore there needs to be proper set of rules in the bill regarding the sharing of DNA Profile with Foreign Government or with foreign institutions.
- There needs to be strict punishments for offenders.
So complying with these recommendations, DNA Profiling bill can be made free out of the concerns and the criticisms.
CONCLUSION– So we have seen both the Utilities and criticisms of this Bill. But Criticisms are something that one can overcome. So if utilities are more than the criticisms there is always a scope of overcoming the criticisms. And also from the International examples we understand that DNA profiling is really necessary and very much required . And moreover Article-51A of DPSPs also endorses the view of having this DNA Profiling technology in India as this particular Article talks about developing Scientific temper, Humanism and Spirit of Enquiry. That is why I think that appropriate changes that are required to be done in the bill must be brought as soon as possible and this bill must take a form of a Legislation as soon as possible.
 Justice K.S. Puttaswamy vs Union Of India, AIR 2018 SC 4161
Author: Dhruv Pachauri