With DNA technology being relied upon worldwide in crime investigations, identification of unclaimed bodies, or determining parentage, India has been attempting for several years to pass legislation on use of DNA technology to “support and strengthen the justice delivery system”. Last week, the Union Cabinet approved the DNA Technology (Use and Application) Regulation Bill, 2018. This follows attempts to frame a Bill in 2007, 2015 and 2017, each under a different name.
According to the final draft prepared in December 2017, the Bill seeks to “provide for the regulation of use and application of DNA technology for the purposes of establishing identity of certain categories of persons including the victims, offenders, suspects, undertrials, missing persons and unknown deceased persons and for matters connected therewith…” Its major features include:
DNA REGULATORY BOARD: The board, which will have regional offices as required, will certify labs authorised to carry out DNA testing, approve establishment of DNA databanks and supervise their functioning, and lay down procedures and guidelines for collection, storing, sharing and deletion of DNA information.
DNA DATABANK: A National DNA Databank and certain regional DNA Databanks will store DNA profiles received from DNA labs in a specified format. “As I see from earlier drafts of the Bill, the DNA Databank will have various categories of indices such as crime scene index, suspect index or undertrials index, offenders index, missing persons index.” said Madhusudhan Reddy, lab-in-charge of DNA Fingerprinting Services at the Centre for DNA Fingerprinting and Diagnostics in Hyderabad. This, he said, will help solve and prevent crimes and can also be used for civil matters. “According to the NCRB, there are almost 40,000 unidentified bodies within the country. And if in a nearby area an FIR has been registered reporting a missing person, the family member’s DNA can be compared with the unidentified person to see if it matches.”
The Bill states that the DNA data, including DNA profiles, samples and records, contained in any DNA labs and Databank “shall be used only for the purpose of facilitating identification of the person and not for any other purpose”. It will only be made available to facilitate the identification of persons in criminal cases in accordance with the rules of admissibility of evidence, to facilitate prosecution or defence, and in investigations relating to civil matters.
Other than in suspects and offenders’ index, the identity of a person is not to be stored in other indices. Only case reference numbers are to be stored in such cases, the Bill states. If a person is not an offender, suspect or undertrial, his/her DNA information cannot be matched with the offenders’ or suspect index. DNA profiles of suspects or undertrials can be removed from the index as per court orders.
The Bill states that DNA information cannot be taken from an arrested person without consent. The exception is only for specified offences, though the Bill does not elaborate on this. Samples can also be obtained from persons who are witness to a crime, or want to locate their missing relatives, or in similar instances in which they can volunteer, in writing, to offer their DNA samples for a specific purpose. But volunteer samples would not be stored in any index. In case, the Bill states, a suspect or criminal refuses to give consent for DNA collection, and his/her DNA information is considered vital for investigation of a crime, the DNA information can be collected from him/her only with the approval of a magistrate.
Safeguard against misuse
The Bill states that disclosure of DNA information to unauthorised persons, or for unauthorised purposes, shall lead to penalties: up to three years in jail and up to Rs 1 lakh as fine. Principal Scientific Adviser K VijayRaghavan, a former secretary of the DBT, said that the new version looks at the DNA sequence in a manner where all major genes are anonymous. “They look at those elements which identifies the person, but don’t identify any of your genes. Genetic background is protected, but the person is still identified,” he said. “This is just like how your fingerprints will identify the person but not tell you whether he has diabetes or not. So this law cannot use DNA identification in criminal cases, loss of lives, paternity, in a manner which reveals anything about the person’s health.”
The draft Bill was first named DNA Profiling Bill in 2007 and then Human DNA Profiling Bill in 2015. In July 2017, the Law Commission’s report proposed a new amended draft called ‘DNA based Technology (Use and Regulation) Bill’, 2017, addressing some concerns on privacy and possible misuse. This current Bill is modelled largely on the Law Commission proposal, except for some nominal changes.
The Secretary of the Department of Biotechnology has been made the ex-officio chairman of the proposed DNA Regulatory Board. In previous versions, including the draft of the Law Commission, this job was open for other “eminent persons” as well, provided they had expertise and knowledge of biological sciences for at least 25 years. The head office of the board, earlier proposed in Hyderabad, is now to be in the National Capital Region.
Reddy said that India is 15 years behind the rest of the world in putting in place such a legislation. “We started off on par with western countries, and DNA profiling was used in the Rajiv Gandhi case and later DNA fingerprinting in the tandoor murder case. But slowly from 2007 onwards, we have been lagging behind, largely because people had some questions and issues regarding privacy. I do think this version is a best version of the Bill, incorporating suggestions that came in from stakeholders,” he said.
Reddy points to laws in countries like the US, to protect genetic privacy. “Basically, there are enough safeguards here. But it would be strengthened if there was an overarching set of provisions and safeguards to protect our genetic information,” he said.
Despite the government’s pitch that such a DNA bank will be useful in solving crimes, activists and lawyers have argued that India does not have a data protection law and that information like ancestry or susceptibility to a disease, or other genetic traits, is liable to be misused. It has also been argued that DNA tests have not led to an improvement in conviction rates in countries where legislation is already being followed.