The Lok Sabha has passed a Bill, The DNA Technology (Use and Application) Regulation Bill, 2018, to allow the regulated use of DNA technology for the establishment of the identity of certain defined categories of individuals, in specific matters related to criminal matters (suspects, offenders, undertrials) and civil disputes like immigration or emigration, parentage dispute, in-vitro-fertilisation, medical negligence and transplantation of human organs. The Bill provides for the creation of regional and national DNA data banks for the maintenance of certain indices: Crime Scene, Suspects, Offenders, Missing Persons and Unknown Deceased Persons.
To collect DNA samples from individuals arrested for an offence that is punishable for 7 years, their written consent is required. In case consent is not given, a Magistrate can be approached for an order, and convinced that the individual’s involvement in the alleged offence can be confirmed or disproved. If the punishment for the offence is over 7 years, then consent is not required. The Bill does not specify consent requirements for civil matters. If the individual concerned in a victim or relative of a missing person, the authorities still need to obtain written consent. In case of minor or disabled individuals, the parent or guardian’s consent is needed.
Currently, the identity of a person, charged with a criminal offence, is established through fingerprinting. But, the regulations pertaining to the use of fingerprinting and the provisions for DNA profiling differ under the Bill. Fingerprints can be obtained for offences that include punishment in the form of rigorous imprisonment for at least one year or more. However, for the collection of DNA samples, the Bill does not delineate the minimum threshold of the offences. Moreover, in the list of sources that can be used for collection of samples for DNA profiling, the Bill includes photographs and video recordings of body parts, in addition to biological substances such as blood sample, hair, and mouth swab. It remains unclear how a DNA sample can be collected from the former.
Laboratories that conduct DNA testing and analysis establishes the identity of individuals for investigative purposes, requires accreditation, valid for 2 years, from the DNA Regulatory Board. These must prepare DNA profiles to share with the data banks. Accreditation may be revoked based on failure to: (i) undertake DNA testing or (ii) comply with the provisions of the Act or conditions attached to the accreditation. They must follow standards of quality assurance in the collection, storage, testing and analysis of DNA samples. In case of criminal cases, the laboratory must return the biological samples to the investigating officer, after the DNA profile has been deposited with the DNA data banks. In all other instances, the sample must be destroyed and the concerned person must be informed.
Incase of criminal investigations, safeguards will be put in place for the use of DNA profiling, related to consent, storage and removal of DNA profiles. But in case of civil disputes, no such safeguards. While the Bill specifies the process of removal of DNA profiles from the Data Banks (written requests or court orders under different circumstances), it does not require the laboratories to do the same. Moreover, there is lack of clarity over whether DNA profiles that are a part of civil matters will be stored in the banks. In this case, storage may be a violation of the privacy of the individual, since this does not serve a public purpose. One of the conditions that allows for the infringement of privacy is that the law must serve a larger public purpose.
Finally, the DNA of an individual can reveal information that goes beyond the establishment of identity, related to medical or physical characteristics. This can impinge upon the individual’s privacy. Hence, in countries like the UK, US, Ireland and South Africa, the laws allow the use of only that specific portion of the DNA that reveals identity but does not contain any other information. While the Law Commission’s 2017 report on the draft bill clearly stated that only the portion of the DNA that provides information of identity will be used for profiling, the Bill in its present format makes no such specifications about what must be included and excluded in the DNA profile.
DNA Profiling is an accurate and well-established scientific technique used for disaster victim identification, investigation of crimes, identification of missing persons and human remains, and for medical research purposes. Thus, while the Bill is an attempt to leverage the utility of DNA profiling in criminal investigations and civil disputes, certain concerns over misuse and lack of clarity need to be addressed for its effective utilization, without hampering the fundamental right to privacy of individuals.
India Outbound
January 10, 2019
source https://indiaoutbound.org/dna-technology-use-and-application-regulation-bill-2018-snapshot/
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