Investigating the Premise and Provisions of the DNA Technology Regulation Bill, 2019
Author: Manvee Kumar Saidha
1. INTRODUCTION
Science and technology have consumed almost every aspect of human life today. The quantitive, calculative and accurate facet of such approach has allowed it to captivate, both, personal and institutional activity. The justice systems, too, engage in the usage of science and technology in an attempt to receive faster, factual and more conclusive derivates of a situation present before any court of law. Advances in the field have particularly benefited criminal investigations, though application is found in civil matters as well. One such approach i.e. the use of DNA, is deliberated upon in this paper.
2. HISTORY OF DNA PROFILING
Even prior to the use of DNA, various scientific tools were used for criminal investigations. Identification was heavily based on recovered finger prints, foot prints, blood, or other evidence that the offender may have left at the scene of the crime. This would then be stored, for the course of investigation or recorded considering its viability, and matched with the corresponding attributes of the suspects in the case. This provided an increased certainty with respect to the identity of the criminal, and would factor in as a material assist to the courts. Sir Alec Jeffreys observed that individuals could be distinguished based on readily detectable differences in their DNA, and was the first to contemplate the mechanism of DNA profiling in the year 1984[1].
DNA profiling, for the first time, was used in a criminal case in the UK in the investigation of the 1983 and 1986 rapes and murders of Lynda Mann and Dawn Ashworth. In this case, Richard Buckland was exonerated through DNA analysis in 1987 and Colin Pitchfork was subsequently convicted. Since 1987, considerable scientific study and resource has been devoted to the development and refinement of DNA analysis technologies[2]. In 1995, the UK National DNA Database was established to maximise the use of DNA profiling in investigations and also to aid identification of repeat offenders. On a global scale, most countries now use forensic DNA analysis in one form or another[3].
As an investigative tool, DNA fingerprinting was utilised to establish blood relations and trace medical history of the victims. As for identification of suspects, investigators would find anonymous DNA at the crime scene and compare it for possible matches. A swab was generally to collect bodily substances from a suspect’s mouth to match it with DNA found at the crime scene[4]. Thus, forensic DNA testing has played an important role in the criminal justice community through aiding conviction of the guilty and exoneration of the innocent[5].
3. WHY DNA?
DNA analysis provides capabilities that cannot be found in most of the other forensic disciplines. Unlike blood found at a crime scene, DNA material remains viable for an endless period of time. DNA technology can be used even on decomposed human remains to identify the victims. For instance, remains from missing persons and victims of mass disasters have been re-associated and identified through linking reference samples to recovered remains[6]. Except identical twins, no two people can have the same DNA i.e. each individual has a distinct DNA profile, making its application even more accurate for the purpose of criminal investigations.
4. JUDICIAL APPROACH IN INDIA
The need for such forensic outlook has been recognised on various occasions. A DNA Profiling Bill was first introduced in 2007, which was prepared by the Department of Biotechnology along with the Union Government. In 2007, the draft Human DNA Profiling was made public. However, it was never introduced in the Parliament due to the arduous criticism it received from public spirited persons and various organisations for not addressing privacy concerns. It has been consequently introduced later, including the years of 2012 and 2016, and recently, in the year 2019.
Recommendations with regard to usage of DNA in the investigation process have been made in the Malimath Committee Report,2003 and A. P. Shah Committee Report, 2012.
The former recommended that DNA experts should be included in the list of experts under clause (g) of Section 293(4) of Cr. P.C., which enlists the scientific experts under the Code. The Committee also recommended an amendment section 4 of Identification of Prisoners Act, 1920 in line with section 27 of the Prevention of Terrorism Act, 2002 which empowers the Court to direct the accused/suspect in writing to give:
(1) Samples of hand writing, finger-prints, foot-prints, photographs, blood, saliva, semen, hair, voice to the police officer either through a medical practitioner or otherwise, as the case may be.
(2) If any accused person refuses to give samples as provided in sub-section (1), the Court shall draw adverse inference against the accused.
The A. P. Shah Committee Report, headed by Hon’ble Justice Ajit Prakash Shah, recommended that there should be safeguards to prevent illegal collection and use of DNA data, and to also prevent the constituted body under the act from misusing the same. Another recommendation was with regard to a mechanism of appeal under which citizens under trial can request for a fresh sample to be taken. It also purported that citizens should have a right of appeal against the retention of data in certain cases.
The Law Commission of India, in its 271st report, dwells into the matter in great detail[7]. Titled, Human DNA Profiling – A draft Bill for the Use and Regulation of DNA-Based Technology, it was released in July 2017. The report discussed the legal viability of DNA profiling while discussing relevant provisions of the Constitution of India, the Indian Evidence Act, 1872 and Criminal Procedure Code,1973. Article 51A(h) and (j), of the Constitution of India, casts a duty on every citizen of India “to develop the scientific temper, humanism and the spirit of inquiry and reform” and, to strive towards excellence in all spheres of individual and collective activity. Entry 65 & 66 of the Union List provides that the parliament is competent to undertake legislations which encourage various technological and scientific methods to detect crimes, speed up investigation and determine standards in institutions for higher education and development in technical institutions.
Under the Indian Evidence Act, 1872, the provision referred to, is Section 9, which deals with facts necessary to explain or introduce a fact in issue or relevant fact. Section 45 provides as to how the Court has to form an opinion upon a point of foreign law or of science or art, or identity of handwriting, etc. Section 51 refers to grounds when opinion becomes relevant, which is to be read with Sections 112 and 114. With respect to the Criminal Procedure Code, the amendment that substituted the Explanation to sections 53 and 54, and made it applicable to section 53A as well, to clarify the scope of “examination,” especially with regard to the use of modern and scientific techniques including DNA profiling. Section 53 authorises the police officials to get medical examination of an arrested person done during the course of an investigation by registered medical practitioner. The Explanation provides that, “Examination shall include the examination of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case”. Moreover, Section 311-A was added to empower the Magistrate to order a person to give specimen signatures or handwriting. xxxxxxxxxxxxxxxxxxxxxxxxxxx
5. THE DNA TECHNOLOGY (USE AND APPLICATION) REGULATION BILL, 2019
The bill intends to provide for “the regulation of use and application of Deoxyribonucleic Acid (DNA) technology for the purposes of establishing the identity of certain categories of persons including the victims, offenders, suspects, undertrials, missing persons and unknown deceased persons and for matters connected therewith or incidental thereto,” per the statement of object and reasons[8].
Certain key provisions pertaining the implementation include, firstly, establishing a national data bank and regional DNA data banks. Each databank is required to maintain indices like the crime scene index, suspects’ or undertrials’ index, offenders’ index, missing persons’ index and unknown deceased persons’ index. This will not only aid identification of victims but, over time, create a database for identifying second-time criminal offenders. It also establishes that DNA testing is allowed only in respect of matters listed in the Schedule to the Bill. These include offences under the Indian Penal Code, 1860, as well as for certain civil matters such as paternity suits.
Secondly, every laboratory that is authorised to analyse DNA under the Bill to ascertain the identity of an individual, has to be accredited by the DNA Regulatory Board, as established under Chapter II of the Bill.
Another important aspect, introduced to combat the issue of privacy protection, is that of consent. Written consent by individuals be obtained before collection of their DNA samples. However, consent is not required where the alleged offence is one with a punishment of more than 7 years in jail or death. The Bill also provides for a reverse provision i.e. the removal of DNA profiles. In case of suspects, removal is on filing of a police report or court order, and in case of undertrials, it is on basis of a court order.
5.1 LEGAL ISSUES
The primary concern that has been raised on a large scale is that of human rights violation. More specifically, the apprehension arises on account of the possible compromise of the right to privacy of an individual. Since the right to privacy has been held to be a fundamental right in the case of Justice K. S. Puttaswamy (Retd.) vs Union of India[9], the issue becomes more pertinent than ever. Nonetheless, privacy with regard to data protection has not been specifically dealt with, or protected , by Indian courts. For instance, one such procedural lacuna identifiable in the Bill is that by taking prior permission from the court, biological samples of suspects in criminal cases can be taken for DNA profiling. Such provisions make-way for a wide scope of misappropriation and consequently, breach. The data that a single strand of DNA can provide about an individual, and their relations thereof, is subject to vulnerability and the consequence of any breach will have far worse outcomes than can be instantly perceived.
Looking at the situation from an international perspective, there exists a clear judicial divide. The use of DNA profiling in investigations, on one hand, is argued to be a step in furtherance of scientific temperament in the justice system, and on the other, a grave violation of human rights. The Universal Declaration of Human Rights 1948 adopted by the United Nations General Assembly expresses concern about the rights of human beings against invo
luntary maltreatment. The Declaration of Helsinki, 1964, stresses on informed consent, confidentiality of data, vulnerable population and requirement of a protocol, including the scientific reasons.
luntary maltreatment. The Declaration of Helsinki, 1964, stresses on informed consent, confidentiality of data, vulnerable population and requirement of a protocol, including the scientific reasons.
6. CONCLUSION
Though there exists a potential of wide application in justice delivery systems — both criminal and civil, it is a big step towards the conception of a ‘surveillance state’. The unrest created by similar past attempts, like central linking to Aadhar biometrics, has left serious misgivings with respect to the actual implementation and execution of the Bill. Revealed information could be misrepresented and misused on various accounts, thereby possibly creating more issues than it attempts to solve. Moreover, this is a step that is being proposed without adequate data protection and privacy guaranteed by our courts. Concerns regarding such data being amenable to hack and breach, coupled with lack of prior legislative protection, leave the DNA profiles vulnerable to misuse. Considering situations wherein merely a strand of hair or a swab of saliva constitute DNA, the evidence in the crime scenes can be misemployed. Thus, the fact that DNA analysis is extremely accurate when it comes ascertaining the identity of a person, is in fact, the greatest advantage as well as greatest risk that can be attributed to this method.
Utilising DNA-based technology can induce an effective outcome if regulated properly. Its relevance in enhancing the productivity of the justice system depends on a concurrent application of legality and ethics.
1 Nick Zagorski, Profile of Alec J. Jeffreys, Proceedings of the National Academy of Sciences, Jun 2006
[2] David baker, The world’s first killer to be caught by his own DNA – a breakthrough that changed policing forever, The Telegraph, 09 Oct 2019
[3] Forensic DNA analysis: a primer for courts Issued: November 2017, ISBN: 978-1-78252-301-7
[4] Government of India, Law Commission Report No. 271, July 2017
[5] Gill P, Jeffreys AJ, Werrett DJ. 1985. Forensic application of DNA ‘fingerprints’. Nature 318, 577–579
[6] Clayton TM, Whitaker JP, Maguire CN., Identification of bodies from the scene of a mass disaster using DNA amplification of short tandem repeat (STR) loci. Forensic Sci. Int., 1995 pp 7–15
[7] Government of India, Law Commission Of India, Report No. 271, 2017
[8] The DNA Technology (Use and Application) Regulation Bill, 2019
[9] Writ petition (Civil) No. 494 of 2012
