By: Pranav Tanwar & Saurabh Pandey
“Existing rules and principles can give us our present location, our bearings, our latitude and longitude. The inn that shelters for the night is not the journey’s end. The law, like the traveler, must be ready for the morrow. It must have a principle of growth”.
– Benjamin Cardozo
The Union Cabinet cleared the DNA Technology (Use and Application) Regulation Bill, 2018 on July 5, 2018. The Bill drafted by the Department of Biotechnology is the latest version of the Bill which originated as the DNA Profiling Bill, 2017. The aim of the current Bill is to institutionalise the collection of DNA samples and thus creating a profile to serve crime investigation machinery. But is DNA profiling as simple as passing a law for its use in forensic labs? The Law Commission of India in its Report No. 271 on Human DNA Profiling mentions that DNA profiling ‘involves various legal and ethical issues and concerns’ which raises apprehensions about its misuse. Unless it is protected, it may result in disclosure of personal information, such as health-related data capable of being misused by persons having prejudicial interests, adversely affecting the privacy of the person.
THE DNA TECHNOLOGY (USE AND APPLICATION) REGULATION BILL, 2018
The prime aim of the Bill is to expand the application of DNA technology to consolidate DNA technology and strengthen the criminal justice system. Also, DNA profiling can help identify missing people, dead bodies, and victims of natural disasters. The Bill seeks to ensure that with the expansion of DNA technology in the country, there is assurance that the DNA test results are reliable and the data remains protected from misuse or abuse in terms of the privacy rights of our citizens. Further, it provides for the mandatory accreditation and regulation of DNA laboratories.
Though some activists have argued that the manner in which DNA information is collected and stored constitutes a violation of privacy, the government has come forward to say that the aim of the bill is, ‘not to profile but storage only for criminal investigation and that even data of suspects will be deleted’.
Ethical Issues: The collection of DNA involves an ethical issue of consent and privacy. The International Covenant on Civil and Political Rights, 1966 under Article 15 provides protection from medical treatment without consent. The Helsinki Declaration, 1964 by World Medical Association underlines the importance of informed consent and confidentiality of data. The Indian Council of Medical Research in 2000 released Comprehensive Ethical Guidelines for Biomedical Research which mentions voluntariness, privacy and confidentiality as essential principles of medical research. Any loophole in the bill about such an ethical issue will cause it to be contrary practices of the medical field.
Human Rights: The Universal Declaration of Human Rights, 1948 expressly mentions the right to privacy under Article 12. The most precise document on DNA collection is recommendations of DNA Commission of the International Society for Forensic Genetics regarding the role of DNA in disaster victim identification. Though it doesn’t deal with legal issues of such collection, it provides that DNA cannot be considered as the sole test for identification and requires adherence to good lab practices to increase reliability over it.
Constitutional Aspects: Though there exists controversy whether the magistrate has the power to issue an order for collection of accused’s physical samples, it has no relevance here, as the law this time will be framed by the legislature. But will such collection violate fundamental right against self-incrimination under Article 20 (3)? The SC in State of Bombay v Kathi Kalu Oghad & Ors, AIR 1961 SC 1808 held that giving finger impressions will not be covered by Article 20 (3) and will not be included within the expression ‘to be witness’ as the expression means imparting knowledge in respect of relevant facts. In Selvi & Ors v State of Karnataka, AIR 2010 SC 1974 the court provided the twin concept of ‘personal testimony’ and ‘identification evidence’. While the former is prohibited by virtue of Art. 20(3), the latter is not. The former is limited to oral or written testimony which conveys knowledge as to relevant facts whereas the latter is only for the purpose of identification. The judgements are clear as to the retrieving of DNA or other forms of physical techniques not being self-incriminatory but there is still confusion regarding the question that if the DNA data is profiled, is it any more limited to merely identification? As Ranjan Desai J. remarked in Ritesh Sinha v State of UP, (2013) 2 SCC 357:
“Hence, the taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context. However, if the DNA profiling technique is further developed and used for testimonial purposes, then such uses in the future could face challenges in the judicial domain”.
In Justice K S Puttaswamy (Retd) v Union of India, (2017) 10 SCC 1, the SC made it clear that informed consent plays a vital role in the right to privacy. Data associated with anyone cannot be collected without their choice and the purpose of collection shall be made clear too. What is the take of the Bill on it will not be clear until it is brought into the public domain? Though in 2015 a version of the Bill, drafted by an expert committee constituted by the Department of Biotechnology (DBT), was in public domain for comments, the recent version is not out yet. Certainly, the biggest impediment for the Bill, considering the contemporary environment of the legal field, will be the right to privacy only.
P. Shah Committee Report, 2012: The report presented to Planning Commission of India on the issue of privacy recommended that there must be a mechanism for appeal against retention of data as well as for fresh sample. The report giving prime importance to the right of privacy suggested that the institution collecting data should be made to release an annual report about their procedure and institutional structure.
271st Law Commission Of India Report, 2016: The Law Commission of India Report recommended that there must be a DNA Profiling Board which shall be the nodal agency to lay down procedure and establish a standard for collection. It shall also monitor collection laboratories and frame guidelines for police to act upon. Further, the Central government shall establish National and Regional DNA Data Bank for storing and maintaining indices such as crime scene index, offenders’ index or unknown deceased index. The report made it clear that there shall be no ambiguity on statute’s stand on consent, confidentiality and sharing of information with foreign government or institutions.
The intricacies involved in the Bill are apparent. The legislature and the concerned Parliamentary committee will have to be cautious about the scope of this Bill. Though some concepts like that of magistrate power are clear already but others like that of consent, ethics or privacy and self- incrimination are yet to be clarified in courts. Can we go ahead with such a law when much is yet to be defined in pre-existing concepts and laws? Are our institutions and laws mature enough for this Bill? Though the law may be vague, one certainty is that Indian law is going to experience dimensions never explored before.
(Pranav & Saurabh are currently students at Faculty of Law, Jamia Millia Islamia, New Delhi.)