DNA Technology bill, 2019- Recent developments and issues

What the Bill is all about

The Bill seeks to regulate use and application of DNA technology for the purposes of only establishing identity of certain categories of persons, including victims, offenders, suspects, under trials, missing persons and unknown deceased persons and related matters.

It seeks to regulate laboratories for DNA testing and analysis by providing for their accreditation, establish national and regional DNA Data Banks to store and maintain DNA profiles and a DNA Regulatory Board for their governance.

DNA Regulatory Board:

The Board would be headed by a secretary level officer and comprise experts in the fields of biological sciences, forensic and legal matters and representatives from various investigating and police agencies like the DG of NIA, Director of CBI, DGP of a state on rotational basis and National Human Rights Commission.

The primary functions of the Board would be:

• Advising governments on all issues relating to establishing DNA labs, data banks, laying down guidelines, standards and procedures for functioning of these banks and labs;
• Granting accreditation to DNA labs;
• Assisting investigating agencies within the country and outside in criminal matters and
• Making recommendations for privacy protection in access, use and analysis of DNA samples and provide for their security and confidentiality.

No court would have jurisdiction to entertain any suit or proceeding in any matter for which the Board is empowered.

Collection and use of DNA data:

 The DNA testing is allowed only for facilitating identification of a person in connection with matters listed in the Schedule of the Bill, such as:

• Criminal offences under the Indian Penal Code where DNA testing is useful for investigating offences;
• Offences under special laws – relating to immoral trafficking, medical termination of pregnancy, sex selection, domestic violence, civil rights violation, atrocities against the SCs and STs and the Motor Vehicles Act;
• Civil matters like parental disputes, pedigree issues, assisted reproductive technologies (ART), transplantation of human organs, immigration/emigration and establishing individual identity and
• Other cases like medical negligence, identifying unidentified human remains and abandoned children etc.

Consent for DNA sample:

No consent would be needed for collecting bodily substances for DNA profiling for offences punishable with more than seven years of imprisonment or death penalty.

But written consent would be mandatory for offences with lesser punishments and in case a person is victim or relative of a missing person. In case of a minor or a disabled person, written consent of parent or guardian would be required. In case consent is refused, a Magistrate could be approached

Why the Bill?

The Bill’s Statement of Objects and Reasons explains that DNA technology has the potential of wide application in the justice delivery systems – both criminal and civil. In criminal cases, it helps in investigation of crimes through biological evidence, including semen evidence in rape cases, blood evidence in murder cases, saliva evidence in identification of source of anonymous threat letters etc. In civil cases, it helps in investigation relating to victims of disasters like cyclone, air crash etc.

Regulation is also required to check misuse or improper use of DNA analysis which can harm individuals or society

Issues and Recent developments in the bill:

• The Schedule lists civil matters where DNA profiling can be used. This includes “issues relating to 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 consent of the individual when DNA profiling is used in criminal investigations and identifying missing persons. However, consent requirements have not been specified in 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.

Report of the Parliamentary Standing Committee on Science and Technology, Environment, Forests and Climate Change on the bill:

The Parliamentary Standing Committee on Science and Technology, Environment, Forests and Climate Change has recommended that the government assuage concerns raised over the DNA Technology (Use and Application) Regulation Bill, 2019, including over creation of a national databank of crime scene DNA profiles and fears of communities being targeted.

While recognising the importance of DNA technology in criminal investigation, the committee, in its report tabled in Parliament Wednesday, says, “The risk with a national databank of crime scene DNA profiles is that it will likely include virtually everyone since DNA is left at the ‘crime scene’ before and after the crime by several persons who may have nothing to do with the crime being investigated.”

It adds, “These fears (regarding the Bill) are not entirely unfounded (and) have to be recognized and addressed by the government and by Parliament as well… The Committee is of the strong opinion that an enabling ecosystem must be created soon to ensure that DNA profiling is done in a manner that is fully consistent with the letter and spirit of various Supreme Court judgments and with the Constitution.”

About a national databank, the committee points out that a crime scene could also hold DNA of someone who was nowhere near it at the time. Noting that “bodily material like hair may have been transported to the crime scene inadvertently by a variety of ways” and that these DNA profiles could find their way into the ‘crime scene index’, the panel suggests that these be used only for investigation but not put in a databank. And that these DNA profiles be destroyed once a trial is over, barring those of the convicted.

While the Bill speaks of regional databanks apart from a central one, the Parliamentary Standing Committee strongly recommends only one National Data Bank, to minimise chances of misuse of data.