DNA Technology (Use and Application) Regulation Bill 2019

Context:

Leaders of All India Majlis-e-Ittehad-ul-Muslimeen (AIMIM) and CPI have filed dissent notes to the parliamentary standing committee’s report on the DNA Technology (Use and Application) Regulation Bill, 2019 on the following grounds:

1. The bill does not take into account their concerns over privacy violations.
2. If enacted, the Bill will target Dalits, Muslims and Adivasis by way of DNA sample collection and indefinite storage.

What has the committee reported?

1. It was informed by the standing committee that the DNA profiles could reveal the sensitive information of any individual which is why it can be misused by people for caste/community-based profiling. This would create a divide between the population.
2. It is also said that DNA profiling bill is a violation of human rights the sensitive information once leaked can compromise with the privacy of the individuals. 
3. There are questions about the clauses in the bill regarding safeguarding the privacy of DNA profiles stored in various databanks.

Provisions of the Bill

• It seeks to establish a national data bank and regional DNA data banks.
• It envisages that every databank will maintain indices like the crime scene index, suspects’ or undertrials’ index, offenders’ index, missing persons’ index and unknown deceased persons’ index.
• It also seeks to establish a DNA Regulatory Board. Every laboratory that analyses DNA samples to establish the identity of an individual, has to be accredited by the board.
• The bill also proposes a written consent by individuals be obtained before collection of their DNA samples. However, consent is not required for offences with punishment of more than seven years in jail or death.
• It also provides for the removal of DNA profiles of suspects on 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 Bill is would regulate the usage and application of DNA technology to establish the identity of:

a) missing persons

b) victims of crimes

c) offenders or criminals

d) under trials/ accused 

e) unknown deceased people

• The aim of the DNA Technology (Use and Application) Regulation Bill, 2019 is an expansion of the application of DNA-based forensic technology to support the justice delivery system of India. 
•  The bill would also ensure the reliability of the technology by providing for all mandatory accreditations and regulations of DNA laboratories
•  It would also ensure data protected from misuse or abuse in terms of the privacy rights of our citizens.
•  The proposed legislation will empower the criminal justice delivery system by enabling the application of DNA evidence, which is considered the gold standard in crime investigations. 
•  Establishment of the National and Regional DNA Data Banks, as envisaged in the Bill, will assist in forensic investigations.
• The bill would also aid in the development of a uniform code of practices in all Indian labs involved in DNA testing.
• The implementation of this will aid in scientific up gradation and streamlining of the DNA testing activities in the country with appropriate inputs from the DNA Regulatory Board which would be set up for the purpose.
• Usage of the scientifically driven technology would empower the existing justice delivery system.

What is DNA Regulatory Board?

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

Functions of the Board:

1. It would advise the governments on all issues relating to establishing DNA labs, data banks, laying down guidelines, standards and procedures for the functioning of these banks and labs
2. It would grant accreditation to DNA labs across the country
3. It would assist the investigating agencies within the country and outside in criminal matters 
4. It would make recommendations for privacy protection for access, usage and analysis of DNA samples
5. The board would also provide for the security and confidentiality of the samples.

No court would entertain any suit or proceed in any matter for which the Board is empowered.

DNA Technology has long been used across the world to solve crimes and as proofs. It would also help in an investigation relating to victims of natural disasters such as cyclone, Tsunami or those who die in an air crash or train derailments. Thus apart from criminal cases, domestic or civil cases would be aided which is why the regulation act is the need of the hour. 

DNA Profiling Bill and India

• DNA evidence was first accepted by the Indian courts in 1985, but it was not till January, 2019 that a bill on the issue was first introduced in Parliament and even passed by the Lok Sabha.
• The initiative to draft a bill regulating the use of DNA samples for crime related reasons began in the year 2003.
• The Department of Biotechnology established a committee known as the DNA Profiling Advisory Committee to make recommendations for the drafting of the DNA profiling bill 2006. This eventually became the Human DNA Profiling Bill, 2007.
• The 2007 draft bill was prepared by the Department of Biotechnology along with the Union Government for DNA fingerprinting and diagnostics.
• In 2007, the draft Human DNA Profiling was made public. However, it was never introduced in the Parliament. It was criticized by civil society members and non-government organizations for not addressing the privacy concerns.
• In 2013, the Department of Biotechnology formulated an expert committee to deliberate on concerns raised about the bill and also to finalize the text.
• In 2015, the government planned to table the bill in the Parliament during its monsoon session but did not do so due to widespread criticism over privacy and data security safeguards.
• In 2016, the Use and Regulation of DNA based technology in Civil and Criminal Proceedings, Identification of Missing Persons and Human Remains Bill was listed for introduction, consideration and passing. Activists and experts raised concerns over the 2016 version of the bill as well.
  • They raised questions of how the bill plans to safeguard the privacy of those whose DNA profiles will be stored in the databank, the safeguards the samples and data banks will have against contamination and theft and the terms of use and availability of the profiles among law enforcement officials, scientists and foreign agencies.
  • However, in 2016, Andhra Pradesh became the first state in India to start DNA profiling to stop crimes.
• In 2018, the Law Commision of India in its 271^st report prepared the draft bill named the DNA Based Technology (Use and Regulation) Bill 2017.
  • The commission examined various judicial pronouncements and constitutional provisions and recorded that DNA profiling was indeed used for disaster victim identification, investigations of crime, identification of missing persons and human remains and also for medical research purposes.
  • However, it also flagged the privacy concerns and the ethics involved in this scientific collection of data were very high.
  • The commission said the procedure for DNA profiling if given statutory recognition should be done legitimately as per the constitutional provisions.

DNA Profiling in Other Countries

• Over 60 countries have made legal provisions for the use of DNA technology to investigate criminal cases. These countries include Argentina, United States, China, Britain and Canada.
• DNA Profiling is allowed only in serious criminal cases in the Netherlands, Germany, France and Austria. This provision also exists in India. By taking prior permission from the court, biological samples of suspects in criminal cases can be taken for DNA profiling.

Arguments Against the Bill

• Many claim that the DNA profiling bill is a violation of human rights as it could compromise with the privacy of the individuals, that is because all the details of the person’s body and his DNA profile will be with the state. The Supreme Court has recognised the Right to Privacy as a fundamental right.
• It will be used not only in the settlement of criminal cases but also in civil matters like using DNA profiling in matters such as surrogacy, maternity or paternity check, organ transplantation and immigration.
• The International Human Rights Declaration and the 1964 Helsinki agreement are also being cited for the case against it.
  • The Universal Declaration of Human Rights 1948 adopted by the United Nations General Assembly expresses concern about the rights of human beings against involuntary maltreatment.
  • The Declaration of Helsinki, 1964, set the guidelines adopted by the 18th World Medical Association General Assembly. It contains 32 principles, which stress on informed consent, confidentiality of data, vulnerable population and requirement of a protocol, including the scientific reasons of the study, to be reviewed by an Ethics Committee.

Arguments in favour of the Bill

• Individual privacy is ensured as the custodian of the databank will not release any information without a formal requisition. The one who is need of the DNA process i.e. investigator has to go through a requisition process via police. Data will be accepted from the investigators which will be matched with the data available in the databank.
• The DNA pattern will be kept in the DNA bank and that will be used whenever required for any purpose in national interest, police interest or forensic interest.
• DNA profiles will be kept under a government regulatory body with certain terms and references. There are a least chances of any misuse.