The DNA Technology (Use and Application) Regulation Bill, 2019 was introduced in the Indian Parliament by the Minister for Science and Technology, Mr. Harsh Vardhan on 8th July 2019, to create a national DNA database to facilitate the Police in solving criminal cases and finding missing persons.
DNA profiling would be an effective tool of forensic science for the criminal justice delivery system of India. However, there are several fundamental issues associated with the creation and maintenance of a national DNA database and procurement of evidence from the crime scene, which must be resolved to realize the purpose of the proposed Bill.
A parliamentary committee was set up to scrutinize the provisions of the Bill that could compromise with the Human Rights of those individuals whose DNA data would be stored. The committee has now come up with a draft report on the Bill.
In its draft report, the committee has highlighted several points for deliberation, some of which are as follows:
[1] Scope of the Bill:
The committee pointed out that the Bill proposes to store DNA profiles of suspects, under trials, victims and their relatives for future investigations. The committee has shown concerns over the legality as well as the morality of the act of storing information of the persons who are covered in the ambit of this Bill. Keeping a DNA database of the convicts would surely help in identifying the repeat offenders, but to what extent storing such critically private and highly sensitive information of individuals from other mentioned groups is justifiable, is yet to be ascertained.
[2] Scope of the Information stored:
DNA profiling involves the determination of various DNA characteristics of an individual. The information derived from the DNA samples, thus, includes not only a person’s look and skin colour, pedigree, health status, etc. but also allergies and susceptibility to diseases. Such critical information would be at the disposal of the data banks, and there is a high risk of misuse of such information. It, thus, raises questions over the potential violation of ‘right to privacy’ guaranteed under ‘Article 21 of Constitution of India.’ Another major concern over the data storage is: the statistical data analysis of the stored data which may be used to link a community or caste or any other group to criminal activities, thereby, red-flagging the community or group as a whole. On a far-fetched note, it may lead to stigmatisation and segregation, which would not be a good sign for our democracy.
[3] Consent of the Parties involved:
Even though the consent of the individuals giving DNA samples is mentioned in various provisions but apparently, a magistrate can easily override such consent and therefore, it appears that the consent contemplated in the Bill is only ‘perfunctory’. The draft report noted:
“The Bill refers to consent in several provisions, but in each of those, a magistrate can easily override consent, thereby in effect, making consent perfunctory. There is also no guidance in the Bill on the grounds and reasons of when the magistrate can override consent, which could become a fatal flaw.”
Furthermore, there is a provision in the Bill which provides for the ‘preservation of the DNA samples' found at the crime scene for ‘perpetuity,’ even if the conviction has been overturned (emphasis added). This is problematic as it may infringe or jeopardize the Right of Privacy and other Human Rights of such individuals whose samples are so stored.
[4] Security of the information stored in the database:
The report also suggests that the concerned Bill is ‘premature’ considering that the lack of robust and comprehensive data protection laws to accommodate and address the issues that may surface as a consequence of this Bill. The huge amount of DNA samples that would be stored in the National DNA Data Bank need to be safeguarded. The samples would include both the samples collected in civil cases (paternity suits) and criminal cases (for reasons mentioned above) with no separate index for the individual category of such cases.
Furthermore, the committee also recommended that a provision be inserted in the Bill to provide for independent scrutiny of individual cases wherein a request has been made to destroy biological samples and DNA samples from the databases. The committee also recommendations insertion of a provision in the Bill stipulating immediate removal of data of a person who has been proved innocent.
The DNA Technology (Use and Application) Regulation Bill, 2019 can become an extremely effective forensic tool for ascertaining the identity of a person from their DNA sample, or establishing biological relationships between individuals. Having said so, the concerns highlighted in the draft report submitted by the parliamentary standing committee pose some serious questions which cannot be overlooked. The parliament must address these issues adequately lest the counter-intuitive implications surpass the constructive objectives sought to be achieved by the proposed Bill.
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