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DNA TECHNOLOGY REGULATION BILL – CHHAYA LALWANI

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DNA TECHNOLOGY REGULATION BILL

Author: Chhaya Lalwani

Law college Dhanbad

ISSN: 2581-8465

ABSTRACT:

The present article deals with proposed legislation named DNA TECHNOLOGY REGULATION BILL 2019 which was introduced in the parliament on July 8th, 2019.

A similar bill was passed in Lok Sabha in January but it could not be cleared in the Rajya Sabha. The bill had then lapsed with the dissolution of the previous Lok Sabha.

The proposed law, which has been in the making since at least 2003, is the third attempt by the government to enact a law to regulate the use of DNA technology in the country after an earlier version of the Bill had been finalized in 2015 but could not be introduced in parliament. The article highlights the key features, provisions, setbacks, the advantage of the Bill. Despite many setbacks in the legislations, there is a major advantage from this that is there will be no loopholes in the criminal justice system and rendering of justice would be a step closer. There is another advantage that DNA is conclusive evidence as “DNA DOES NOT LIE”

INTRODUCTION

The DNA TECHNOLOGY REGULATION  Bill 2019 that provides for the regulation of use and application of DNA technology for establishing the identity of certain categories of persons, including offenders, victims, suspects, and undertrials, was passed in Lok Sabha on this Monday, July 8, 2019. The bill also is known as the Human DNA Profiling Bill. Bill is formulated by the Center for DNA Fingerprinting and Diagnostics, Hyderabad.

Union Minister of Science and Technology Dr. Harsh Vardhan recently introduced ” The DNA Technology ( Use and Application) Bill, 2019.”

This Bill seeks to expand the application of DNA – based forensic technologies to support and strengthen the justice delivery system.

This is the third attempt of the parliament regarding the bill. It is a piece of technical legislation

A similar bill was passed in Lok Sabha in January but it could not be cleared in the Rajya Sabha. The bill had then lapsed with the dissolution of the previous Lok Sabha. The proposed law, which has been in the making since at least 2003, is the third attempt by the government to enact a law to regulate the use of DNA technology in the country after an earlier version of the Bill had been finalized in 2015 but could not be introduced in parliament. The congress was against the introduction of the bill, raising privacy and other security concerns.

History of the Bill

In the year 2000, a  meeting i.e.the International Congress was held on how biology was impacting society The members of the meeting included the then Prime Minister  Dr. APJ Abdul Kalam and Ananda Chakravarty, who was the 1st person to file a patent on living forms.

After the talks, a committee was set up and it recommended to bring in action The DNA Technology Bill. After the enactment of this bill DNA would become admissible in the courts.

In 2000, The bill was then presented to the Ministry of Science and Technology in 2002 and since then it has passed through various phases.

Salient features of the Bill

1.Formulation of  National DNA Data Bank and Regional DNA Data Bank

Every Data Bank will maintain the following indices: (i) crime scene index, (ii) suspects’ or undertrials’ index, (iii) offenders’ index, (iv) missing persons’ index, and (v) unknown deceased persons’ index. The bank would be the repository of all DNA samples collected from various people under specified rules.

2.  Formulation of Regulatory board with a view  to authorize laboratories across the country and provide Framework for collection and removal of DNA information

And prepare schedule which lists down circumstances/ provisions of the law under which the DNA information collected can be used.

Further, the board would frame the rules and guidelines for DNA collection, testing, and storage,

3. Under the Bill, written consent by individuals is required to collect DNA samples from them. However, Consent is not required for offenses with a punishment of more than seven years of imprisonment or death.

4. It also provides for the removal of DNA profiles of suspects upon the filing of a police report or court order, and of undertrials on the basis of a court order.

Profiles in the crime scene and missing persons’ index will be removed on a written request.

The government has insisted that the Bill will merely expand the “application of DNA-based forensic technologies to support and strengthen the justice delivery of the country”, activists and civil society members claim that the Centre has ignored privacy and security concerns.

The Law Commission, which submitted the final version of the DNA-Based Technology (Use and Regulation) Bill, 2018 to the government in 2017, did not examine the Bill in light of two important privacy-related developments.

The Law Commission finished its deliberations regarding the bill by July 2017, a month before a nine-judge bench of the Supreme Court ruled in Puttaswamy vs [1]Union of India that Indians enjoy a fundamental right to privacy. In its report, the Law Commission made multiple allusions to the then-impending privacy judgment and stated that “whether in Indian context privacy is an integral part of Article 21 of the constitution is a matter of academic debate. The issue is pending consideration before a larger bench of the Supreme Court.”

Secondly, the Law commission’s report preceded Justice Srikrishna’s report [2]which laid down the rights of ‘data principals’ (Indian citizens), proposed the creation of a data authority to enforce the Act and set penalties for violations by ‘data fiduciaries’.

Benefits of this bill; especially with regard to the criminal justice system:

The debate around the bill/ issues or concerns regarding the bill

The debate in the Lok Sabha focused on the potential for misuse of the Bill, consent, and privacy.

On the first count, Harsh Vardhan, Union science and technology minister, said that the potential was there as with any other laws, implying that its safe implementation came down to enforcement.

 Use of DNA for Civil purposes: In the earlier bill, the consent requirement for DNA usage in civil cases was missing. 

DNA data if shared with health agencies may increase the insurance price if they find any susceptibility to disease.

However, DNA profiling is just a genetic signature and can only identify the person. It doesn’t disclose any other information about the person. DNA Storage & deletion of data:  DNA profile can be removed if given in writing.

Privacy concerns for people with storage of data- affects Article right to life. However, the storage of DNA is beneficial in identifying unclaimed bodies & give it back to persons.

DNA material is limited to investigator & destroyed after use i.e. should not be passed to any other agencies.

A comprehensive roadmap for capacity building: training of police & investigator.

Must bring the data protection law to assuage the concerns of people for privacy issues. Data protection law must come first

For DNA storage: basic facilities can be upgraded.

Technical legislation must be consulted with technical people to allay the fear of parliamentarians.

DNA technology bill is the need of the hour. Deliberations, discussions & technical scrutiny by the parliamentary standing committee should be at a faster pace Capacity Building and training of police officers DNA technology is being used even for proving Civil Offences.

DNA can reveal more than required information about an individual like health issues etc.

DNA once collected and investigated if not destroyed can be used by insurance agencies to charge one heavily on the suspects of future ailments.

One of the provisions of the bill states that DNA information of an individual can be deleted if he/ she gives in writing and then in the case of disaster identification of the individual will be impossible.

There should be delimitation on the usage of DNA to only that part which establishes identity.

DNA Data Protection is the most important.

PROBLEMS IN ENACTING THE BILL

The latest draft is rid of many of these problems but still retains a few. For example, written consent is required from everyone for their DNA samples to be collected, processed and included in the database except for those who have committed crimes with a punishment of 7+ years or death. However, similarly, specific instruction is missing for the collection of DNA samples for civil matters. Such matters include parentage disputes, emigration or immigration and transplantation of human organs. The Bill also doesn’t state that the consent has to be voluntary.

Second, it’s not clear if DNA samples collected to resolve civil disputes will also be stored in the databank (regional or national), although there is no index specific for the same. If they will be stored, then the problem cascades because the Bill also does not provide for information, consent and appeals, i.e. if a person’s DNA data has entered the databank, there is no process specified by which they can have it removed. All of these issues together could violate the right to privacy.

A nine-judge bench of the Supreme Court had ruled in August 2017 that the right to privacy is a fundamental right. They had also specified that should an activity need to violate the need, it should also meet three conditions: there should be a law describing/defining the specific activity, the law must have a public purpose and the purpose should be “proportionate” to the violation of privacy. While the DNA Bill may not clear the second condition, it remains to be seen if the use of the Bill to do good – so to speak – will allow it to jump over this barrier.

Third, there’s also the question of whether the DNA labs accredited by the Regulatory Board are allowed to store copies of the samples they analyze – and if so, how the owners of those samples can ensure the data is safe or needs to be removed from their own indices. In fact, going a step further, it’s unclear if the Regulatory Board will oversee other tests performed at the accredited labs.

This could become necessary because, unlike one’s biometric data or PAN number, the human genome contains lots of information about every individual. So a test undertaken to ascertain a person’s identity by analyzing her DNA will in the process also reveal a lot of other things about that person, including information about their ancestry, diseases to which they are susceptible, etc. – i.e. information that the individual has a right to keep private.

This also highlights a fourth – and major – issue with the Bill: it does not specify which parts of an individual’s DNA can be analyzed to ascertain their identity. The more parts are subjected to analysis, the more conclusively a person’s identity can be established. But this can’t be used as a license to parse more than is necessary because then the DNA lab is also likely to reveal more information than it has the right to seek.

WHY BILL WAS DELAYED? Due to the Opposition of the introduction of the bill by the Congress leader in Lok Sabha Adhir Ranjan Chowdhury by stating that the Bill violates fundamental rights as DNA of undertrials can be collected without court orders. Describing the draft law as “flawed”, he said there is no provision of consent on the storage of DNA data.

Further, Another opposition by Congress leader Shashi Tharoor alleged that the bill would institutionalize a “surveillance state” and suggested that a data protection law should be put in place first. “You cannot put the cart before the horse,” he said. However

Minister for science and technology Harsh Vardhan, who introduced the Bill, said there is “no serious substance” in the concerns raised by members. He also pointed out that several rounds of consultations have been undertaken and the measure has been pending for nearly a decade. He reminded members that a similar bill was passed by the previous Lok Sabha too after long deliberations.

Will this Bill help the Judicial system or Not?

The bill will empower the criminal justice delivery system by enabling the application of DNA evidence, which is considered the gold standard in crime investigation.

Currently, this bill proposes to use DNA samples in both criminal and civil cases for which the objections were raised.

The consent of the individual should be obligatory. DNA can reveal a lot of information.

•The bill proposes that DNA profiling to be completely neutral meaning thereby to be used only for the purpose it is taken for.

• The data banks are required to store information under one of the five indices:-

 1) A crime scene index

 2) A suspect or undertrial index

 3) An offender’s index

 4) A missing person index and

 5) An unknown deceased person index.

• Also, the data banks are supposed to store only that information that is necessary to establish the identity of the mission.

SUGGESTIONS:

The bill should be referred to Standing committee for the following reasons:

Reason 1: Puttaswamy judgment and Srikrishna report

The DNA Bill was not examined, either by the government or the Law Commission, in the context of two recent and important privacy-related developments.

The first is the ‘right to privacy’ judgment, or Puttaswamy vs Union of India[4], which came out in August 2017 and held that all Indians enjoy a fundamental right to privacy. The judgment – which overruled verdicts given in the M.P. Sharma case of 1958 and the Kharak Singh case of 1961 – ruled that the right to privacy is intrinsic to life and liberty and thus comes under Article 21 of the constitution.

The Law Commission, which finished its deliberations by July 2017, a month before the right to privacy was guaranteed, could not consider or ensure that it worked in the full import of the Puttaswamy judgment into the Bill.

In fact, the Law Commission’s report makes multiple mentions to (at the time) the impending privacy judgment.

At one point it makes reference to M.P. Sharma and Kharak Singh and notes that the court has “referred the matter to a larger bench for authoritative interpretation of the law on the issue”.

At another point, in the ‘conclusions’ section of its report, the Law Commission acknowledges that the 2017 Bill “provides provisions intended to protect the right to privacy”, but grimly states that in India, it is a “matter of academic debate” as to whether privacy is an integral part of Article 21 of the constitution.

As we know now, it is indeed an integral part of Article 21 and has been upheld by the Supreme Court. Why does this matter? It is crucial because as privacy experts point out[5], the 2017 Bill still hasn’t tightly defined how exactly DNA profiling can be used and is missing a “number of safeguards that would enable individual rights”. A parliamentary standing committee would do well to see how well the DNA Bill conforms to the Puttaswamy judgment.

The second context in which the Bill must be examined is the Justice Srikrishna report which is yet to be released. This report, which has been delayed, will provide a framework for data protection and privacy and hopefully lay down foundational principles on how public and private entities must treat an individual person’s data.

Reason 2: Is India’s law enforcement system ready?

While the DNA Bill originated in the Ministry of Science and Technology, its actual use and utility lie with India’s law enforcement agencies. In this context, it is odd that the DNA Bill hasn’t been subjected to an in-depth review by the home affairs ministry or law enforcement agencies.

While both parties appear to have replied in brief[6] to a few issues surrounding the Bill in the Supreme Court, in response to a PIL petition filed by the Lokniti Foundation, that is not nearly enough.

While DNA profiling and testing have been used before in criminal investigations in India, the lack of proper infrastructure and technical know-how has restricted it from being used in a widespread or effective manner.

As at least one member of the expert committee that reviewed the 2012 version of the DNA profiling Bill noted, the way local police and law enforcement agencies interact with and collect samples is of paramount importance.

There are risks of contamination, risks in the chain of custody and risks in how the crime site is treated.

Indian police investigations have been sharply criticized for their shoddy forensic techniques. What is further worrying is that the home ministry only recently circulated[7] a set of guidelines on how investigating officers should “search crime scenes and scientifically collect, store and transport DNA samples in criminal cases”.

If the Bill was referred to a standing committee, it could assess the state of readiness of India’s police and whether that would make the DNA Bill a good or bad idea. Specifically in the context of whether the law enforcement system is equipped to handle it in a secure and responsible manner. After all, the implications of being found on the database are serious.

Reason 3: How much is this going to cost?

Like most large-scale technological systems in India, the proposed DNA database project has suffered from the lack of a cost-analysis study.

The Indian government, however, has maintained that the whole project will cost only Rs 20 crore.

This, on the face of it, appears to be a ridiculous under-estimate. The Wire has shown,[8] the cost of just acquiring the DNA samples from people arrested in India on criminal charges alone could be over Rs 1,800 crore. This figure is based on costs put out by India’s nodal DNA profiling agency, the Centre for DNA Fingerprinting and Diagnostics (CDFD).

A standing committee should look at this and more.

Reason 4: Caste, fidelity, and silo-linking

Civil society stakeholders have maintained over the years that the new system should not further contribute to the institutional bias that is already present in the existing DNA identification.

Law enforcement techniques that involve the use of DNA technology often rely on the practice of ‘cold hits’, where DNA databases are searched even if there isn’t an investigative lead. This practice, combined with the reliabilities that come with DNA testing, proves to be deadly for already vulnerable populations (Dalit communities) that are at increased risk of police bias.

A standing committee should look into this before any law is passed and before any database can be created.

[1]http s://thewire.in/law/supreme-court-aadhaar-right-to-privacy

[2] https://thewire.in/tech/india-template-data-protection-draft-bill

[3]http://prsindia.org/sites/default/files/bill_files/Legislative%20Brief-%20DNA%20Regulation%20Bill%202018.pdf

[4] https://thewire.in/law/supreme-court-aadhaar-right-to-privacy

[5] https://www.hindustantimes.com/analysis/here-s-why-we-need-a-lot-more-discussion-on-india-s-new-dna-profiling-bill/story-CojTDv2vfMMMBsW0CaLxIP.html

[6]https://www.outlookindia.com/website/story/process-to-bring-in-human-dna-profiling-bill-has-begun-government-tells-supreme-/299696

[7] https://economictimes.indiatimes.com/news/politics-and-nation/home-ministry-guides-states-on-searching-crime-scenes-collecting-evidence/articleshow/64940735.cms

[8] https://thewire.in/health/modi-wants-the-dna-profiling-bill-passed-right-away-heres-why-it-shouldnt-be

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