Summary Of The DNA Technology (Use And Application) Regulation Bill 2018

BACKGROUND

Forensic DNA Profiling is of utmost value in solving cases, involving offences that are categorized as affecting human body such as murder, rape, grievous hurt and human trafficking and those against property such as theft, dacoity and burglary. As per the stats of National Crime Records Bureau, the aggregate incidence of such crimes was about 3 lakhs per year.  The Deoxyribonucleic acid (DNA) is a set of instructions found in the cell. These instructions are used in the growth and development of an organism. The DNA of a person is unique and variation in the sequence of DNA can be used to match individuals and identify them.[1] DNA technology provides with clear and accurate establishment of individual identity. DNA technology can be used to aid criminal investigations. For example, in order to determine the identity of a criminal offender may be done by matching the DNA found at the crime scene with the DNA of a suspect.[2] Further the DNA technology can be used for the identification of the victims in the event of natural calamities such as earthquake, floods, or in the event of terrorist attacks. In addition DNA Technology can be used in civil matters such as parentage related disputes. The DNA Technology (Use and Application) Regulation Bill 2018 has been introduced in India’s Parliament with a view of creating a National DNA Database for the use of the Police in solving crimes and identifying the missing person. DNA Technology has been considered important tool in solving crimes and it plays a vital role in order to safeguard and protect human rights and prevent miscarriage of justice.

Currently the DNA Technology for the identification of individuals is not regulated. In the past the Law Commission have looked down upon the usage and regulation of DNA Technology. The Commission submitted its report as well as the draft of the bill in July 2017. In this context, the DNA Technology (Use and Application) Regulation Bill 2018 was introduced in the Lok Sabha on 9^th August 2018. The Bill regulates the use of DNA technology for the purpose of identification of persons in civil and criminal matters.

HIGHLIGHTS OF THE DNA TECHNOLOGY (USE AND APPLICATION) REGULATION BILL 2018

1. The bill regulates and provides with the use of DNA Technology for establishing the identity of person in respect of matters enlisted in the schedule. These include criminal matters as well as the civil matters such as parentage, emigration and transplantation of human organs.
2. The Bill establishes to have the National DNA data bank and Regional Data Bank, which will maintain the following indices:

• Crime Scene index
• Offenders index
• Suspect or under- Trial index
• Missing person index
• Unknown deceased person index

3. The bill establishes to have a DNA regulatory Board which would lay down the procedure and guidelines for the collection, storage, sharing and deletion of the DNA Information
4. The Bill establishes to have DNA Laboratory that would analyses the DNA Sample to establish the identity of an individual.
5. Written consent is required for the collection of DNA, but the same is not required for the offences with punishment for more than 7 years of imprisonment or death.
6. The Bill also provides for the removal of DNA samples and profiles on a written request.
7. The bill requires the consent of the individual when DNA Profiling is being used in the criminal investigation and in identifying the missing person.
8. The bill specifies the procedure by which DNA profiles may be removed from the DNA data banks.

SALIENT FEATURES OF THE DNA TECHNOLOGY (USE AND APPLICATION) REGULATION BILL 2018

1. ESTABLISHMENT OF DNA REGULATORY BOARD:

The Bill provides for the establishment of DNA Regulatory Board which will supervise the work of DNA Data Banks and DNA Laboratories. The Secretary in the department of Biotechnology will be ex- officio chairperson of the Board. In addition the board will comprise of 12 additional members including

• Experts in the field of biological sciences
• Directors of Central Bureau of Investigation
• Director General of National Investigation Agency
• Members of Centre for DNA Fingerprinting and diagnostic
• Members of national Human Right Commission

The Function of the board includes supervising DNA Data Banks and DNA Laboratories, granting accreditations to the DNA Laboratories, developing modules and training programs to deal with DNA related matters. Further the board can make recommendations to the central government on privacy protection in relation to DNA use and its applications. The board is also required to ensure all information relating to the DNA Profiles with the data banks and DNA Laboratories to be kept confidential.

2. ESTABLISHMENT OF DNA DATA BANK:

The bill provides that the Central Government will establish a National DNA DATA Bank and Regional Data Bank for each State as it deem necessary. Every DNA Data Bank is required to maintain the following indices:

• Crime scene Index
• Suspects and Under Trial Index
• Missing person’s index
• Offenders index
• Unknown deceased person

3. CONSENT FOR THE COLLECTION OF SAMPLES

In case of person arrested for an offence which is punishable with imprisonment up to 7 years, the authorities concerned are required to obtain his written consent before collecting the samples. If the consent is not given, the authorities can approach to the magistrate who may order the taking of bodily substances, from the individual if satisfied that the DNA will confirm or disapprove the individual’s involvement in the alleged offence. If the offence is punishable with death or imprisonment for life, then consent is not required. If a person is a victim or relative of missing person, authorities required to obtain their written consent to collect the samples. In case of minor or unsound person, the consent of the guardian is required.

4. ACCREDITATION OF DNA LABORATORIES

The laboratories which conduct DNA Testing and analysis to establish the identity of an individual is required to have the accreditation or approval from the DNA Regulatory Board Accreditation which will be valid for the two years. The Regulatory board has the power to revoke the accreditation for the reasons including failure to:

• Undertake DNA Testing
• Failure to Comply with the provision of the Act
• Failure to follow standard of quality assurance in collection, storing, testing and analysis of DNA Samples.

5. ESTABLISHMENT OF DNA DATA BANK

The Central Government will establish the National DNA Data Bank and Regional Data Bank for each state or for two or more state as it deem necessary. Every DNA Data bank is required to maintain the indices as has been mentioned above.

6. SHARING OF DNA DATA WITH BANKS

All the DNA Data Banks will share DNA Data prepared by them with the National DNA Data Bank. In case of criminal cases, the concerned laboratory is required to return the biological samples to the investigating officer after depositing the DNA Profile with the DNA Data Banks, but in other cases the laboratory will destroy the sample and inform the concerned person.

7. REMOVAL OF DNA AND ONE TIME KEYBOARD SEARCH

DNA Profile collected in the criminal index or missing person index shall be removed from the DNA Data Banks on the written request being made by the individual in this behalf. The DNA Profile of a suspect will be removed after filing of a police report, while in the case of the under trial, the DNA Samples will be removed on the basis of the court order. The Bill also provides for one time Keyboard search for any DNA sample collected in a criminal investigation.

8. OFFENCES AND PENALTIES

The penalty for various offences such as unauthorized disclosure of information from the Data bank, obtaining information from the Data Bank without authorization and using DNA samples without authorization is punishable with imprisonment up to three years and fine up to one lakh. Further the penalty for tampering or destruction of biological evidence is punishable with imprisonment for five years and fine up to two lakh rupees.

CRITICISM OF THE DNA TECHNOLOGY (USE AND APPLICATION) REGULATION BILL 2018

• The concern for privacy protection is missing in the present bill.
• The need to restrict DNA Profiling, which prevents the use of parts of the DNA, is not included in the bill.
• The concern for the international sharing of DNA profiles has not been covered under this bill.
• Many activists and lawyers argued that India does not have a Data Protection Law and information like ancestry or susceptibility to the genetic traits and disease can be misused as no provisions has been mentioned in the bill to safeguard such things.
• It has been argued by the activists that the DNA test have not led to an improvement in conviction rates in the countries where the legislation is already been enacted.

CONCLUSION

Although the DNA Technology (Use and Application) Regulation Bill 2018 has covered the wide ambit of the use of DNA Technology for establishing the identity of persons in respect of the matters enlisted in the schedule such as offences under the Indian Penal code of 1860 and in civil matters such as parentage dispute, immigration and emigration and transplantation of human organs. But in spite of all such things the bill lacks in many sphere such as privacy issues, maintenance of strict confidentiality, safeguards to prevent from illegal collection and use of DNA samples etc. Thus the bill needs further improvement and the law commission reports and recommendations by Malimath Committee Report and A.P Shah Committee needs to be followed.

[1] “DNA Technology in Forensic Science”, Committee on DNA Technology in Forensic Science, United States of America, 1992.

[2] “Report No. 271: Human DNA Profiling- A draft Bill for the Use and Regulation of DNA-Based Technology”, Law Commission of India, July 2017, http://lawcommissionofindia.nic.in/reports/Report271.pdf.