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  1. In a landmark decision, the Lok Sabha passed “The DNA Technology (Use and Application) Regulation Bill – 2019”.
  2. The Bill has been formulated
    1. recognizing the need for regulation of the use and application of Deoxyribonucleic Acid (DNA) technology,
    2. for establishing identity of missing persons, victims, offenders, under trials and unknown deceased persons.
    3. to expand the application of DNA-based forensic technologies to support and strengthen the justice delivery system of the country.
    4. By providing for the mandatory accreditation and regulation of DNA laboratories, the Bill seeks to ensure that with the proposed expanded use of this technology in this country, there is also the assurance that the DNA test results are reliable, and
    5. furthermore that the data remain protected from misuse or abuse in terms of the privacy rights of our citizens.
  3. The key components of this Bill include:
    1. establishment of a DNA Regulatory Board;
    2. accreditation of DNA laboratories undertaking DNA testing, analyzing, etc.;
    3. establishment of the National and Regional DNA Data Banks, as envisaged in the Bill, will assist in forensic investigations. 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.
  4. The utility of DNA based technologies for solving crimes, and to identify missing persons, is well recognized across the world.
  5. The Bill will add value in empowering the criminal justice delivery system by enabling the application of DNA evidence, which is considered the gold standard in crime investigations.

Highlights of the Bill

  1. The Bill regulates the use of DNA technology for establishing the identity of persons in respect of matters listed in a Schedule.
    1. These include criminal matters (such as offences under the Indian Penal Code, 1860), and
    2. civil matters such as parentage disputes, emigration or immigration, and transplantation of human organs.
  2. The Bill establishes a National DNA Data Bank and Regional DNA Data Banks.
    1. Every Data Bank will maintain the following indices:
      1. crime scene index,
      2. suspects’ or undertrials’ index,
  • offenders’ index,
  1. missing persons’ index, and
  2. unknown deceased persons’ index.
  3. The Bill establishes a DNA Regulatory Board. Every DNA laboratory that analyses a DNA sample to establish the identity of an individual, must be accredited by the Board.
  4. Written consent by individuals is required to collect DNA samples from them. Consent is not required for offences with punishment of more than seven years of imprisonment or death.
  5. The Bill provides for the removal of DNA profiles of suspects on filing of a police report or court order, and of undertrials based on a court order. Profiles in the crime scene and missing persons’ index will be removed on a written request.
  1. Key Issues and Analysis
    1. The Schedule lists civil matters where DNA profiling can be used. This includes “issues relating to establishment of individual identity.” DNA testing carried out in medical or research laboratories can be used to identify an individual. It is unclear if the Bill intends to regulate such laboratories.
    2. The Bill requires consent of the individual when DNA profiling is used in criminal investigations and identifying missing persons. However, consent requirements have not been specified in case of DNA profiling for civil matters.
    3. DNA laboratories are required to share DNA data with the Data Banks. It is unclear whether DNA profiles for civil matters will also be stored in the Data Banks.  Storage of these profiles in the Data Banks may violate the right to privacy.
    4. DNA laboratories prepare DNA profiles and then share them with DNA Data Banks. The Bill specifies the process by which DNA profiles may be removed from the Data Banks.  However, the Bill does not require DNA laboratories to remove DNA profiles.  It may be argued that such provisions be included in the Bill and not left to regulations.
  1. PART A: HIGHLIGHTS OF THE BILL
    1. Context
      1. The Deoxyribonucleic Acid (DNA) is a set of instructions found in a cell. These instructions are used for 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. DNA technology, therefore allows for accurate establishment of an individual’s identity.
      2. DNA-based technology can be used to aid criminal investigations. For example, the identity of a criminal offender may be determined by matching DNA found at the crime scene with the DNA of a suspect.
  • In addition, DNA-based technology helps in identification of victims in the event of terrorist attacks or natural disasters such as earthquakes. For example, DNA technology has been used to identify victims of terrorist attacks on the World Trade Centre in 2001, and disasters such as the Asian tsunami in 2004.
  1. Further, DNA profiling can be used in civil matters, such as parentage related disputes.
  2. Currently, the use of DNA technology for identification of individuals is not regulated. In the past, several expert groups including the Law Commission, have looked at the use and regulation of DNA technology.

 

  1. Key Features
    1. Use of DNA Data: The Bill regulates DNA testing for identification of persons, in respect of matters listed in the Schedule. This includes offences under the Indian Penal Code, 1860, as well as offences under other laws such as the Immoral Traffic (Prevention) Act, 1956, the Medical Termination of Pregnancy Act, 1971, the Protection of Civil Rights Act, 1955, and the Motor Vehicles Act, 1988.
    2. The Schedule also allows for DNA testing in certain civil matters. This includes matters such as parentage disputes, issues related to pedigree, immigration or emigration, assisted reproductive technologies, transplantation of human organs, and for the establishment of individual identity.
  • Consent for collecting bodily substances
    1. In case of a person arrested for an offence which carries punishment up to seven years, the authorities are required to obtain his written consent before collecting his bodily substances. If consent is not given, the authorities may approach a Magistrate who may order the taking of bodily substances from the individual, if he is satisfied that DNA will confirm or disprove the individual’s involvement in the alleged offence. If the offence carries a punishment of more than seven years of imprisonment or death, consent is not required.
    2. If a person is a victim, or relative of a missing person, authorities are required to obtain their written consent to collect bodily substances. In case of a minor or disabled person, the written consent of the parent or guardian is required. If consent is not given, the authorities may approach a Magistrate who may order taking of the bodily substances of the person.
  1. Accreditation of DNA Laboratories
    1. Any laboratory that conducts DNA testing and analysis to establish the identity of an individual (in respect of matters listed in the Schedule) is required to obtain accreditation from the DNA Regulatory Board. Accreditation will be valid for two years.
    2. The Board may revoke accreditation for reasons including, failure to: (i) undertake DNA testing, or (ii) comply with the provisions of the Act or conditions attached to the accreditation. If accreditation is revoked, an appeal will lie before the central government or any authority notified by the central government.
    3. Every DNA laboratory is required to follow standards of quality assurance in collection, storing, testing, and analysis of DNA samples.
  2. DNA Data Bank
    1. The central government will establish a National DNA Data Bank and Regional DNA Data Banks for each state, or two or more states, as it may deem necessary.
    2. Every DNA Data Bank is required to maintain the following indices based on DNA testing conducted by a DNA laboratory: (i) crime scene index, (ii) suspects’ or undertrials’ index, (iii) offenders’ index, (iv) missing persons’ index, and (v) unknown deceased persons’ index.
  3. Sharing of DNA data with Data Banks
    1. All DNA laboratories will share DNA data prepared by them with the National and Regional DNA Data Banks.
    2. In criminal cases, the laboratory is required to return the biological sample to the investigating officer after depositing the DNA profile with the DNA Data Banks. In all other cases, the laboratory will destroy the sample and inform the concerned person.
  • Removal of DNA profiles
    1. DNA profiles in the crime scene index or missing persons’ index will be removed from the DNA Data Banks on the basis of a written request by the individual. The DNA profile of a suspect will be removed after the filing of a police report or as per a court order. In the case of an undertrial, the DNA profile will be removed on the basis of a court order.
  • One-time keyboard search
    1. The Bill allows for a one-time keyboard search for any DNA sample collected in a criminal investigation. This means that the DNA sample can be compared with information in the index of the Data Bank, without the information from the sample being included in the index.
  1. DNA Regulatory Board
    1. The Bill provides for a DNA Regulatory Board, which will supervise DNA Data Banks and DNA laboratories. The Secretary in the Department of Biotechnology will be the ex-officio Chairperson of the Board.
    2. The Board will comprise an additional 12 members including:
      1. experts in the field of biological sciences,
      2. Director General of the National Investigation Agency,
      3. Directors of the Central Bureau of Investigation, Centre for DNA Fingerprinting and Diagnostics, Central Forensic Science Laboratory, and
      4. member of the National Human Rights Commission.
    3. The functions of the Board include:
      1. supervising DNA laboratories and DNA Data Banks, including quality control,
      2. granting accreditation to DNA laboratories, and
      3. developing modules for training manpower to deal with DNA related matters. Further, the Board will make recommendations to the central government on privacy protection in relation to the use and analysis of DNA samples.
    4. The Board is required to ensure that all information relating to DNA profiles with Data Banks, DNA laboratories, and other persons are kept confidential. DNA data may only be used for the identification of persons.
  2. Offences and penalties
    1. The penalty for various offences such as:
      1. unauthorized disclosure of information from the Data Bank,
      2. obtaining information from the Data Bank without authorization, or
      3. using DNA sample without authorization, is imprisonment up to three years and fine of up to one lakh rupees. Further, the penalty for intentional tampering or destruction of biological evidence is imprisonment up to five years as well as fine of up to two lakh rupees.