On 08 July, 2019, Dr. Harsh Vardhan, minister for health and family welfare, science and technology and earth sciences[1] introduced the DNA Technology (Use and Application) Regulation Bill, 2019[2] (“Bill”) in the Indian Lok Sabha[3]. The Bill was referred to the standing committee on science and technology, environment and forests (“Standing Committee”). Comments to the same were sought soon after[4].
The Bill regulates the use and application of deoxyribonucleic acid (“DNA”) related technology for identifying persons for law enforcement and other purposes. Bills with similar objectives were released in 2007[5] and in 2016[6], and 2018[7], making this Bill the fourth iteration of the proposed law. The Bill fills some gaps in the previous iterations and lays out a framework for DNA laboratory accreditation, establishing a DNA regulatory board, national and regional DNA data banks, all to offer better quality evidence to the courts. However, certain concerns still remain, such as inadequate safeguards in the Bill for consent, retention of DNA profiles, entry of DNA profiles of suspects, and wide powers to collect DNA samples from any person deemed to be associated with a crime, among other things.
Our comments to the Bill may be accessed here. Our comments in brief are:
- The Bill should build in sufficient safeguards for obtaining consent of suspects for taking their DNA samples. Collection of bodily samples should satisfy the test laid down in Puttuswamy v. Union of India.[8]
- Different consent and retention standards should be devised for distinct categories of people, i.e. people associated with criminal proceedings and people not associated with criminal proceedings (those looking to locate their missing relatives or unknown deceased persons).
- Consent of suspects to collect their DNA should be obtained in the presence of a Magistrate. For other purposes, the persons whose DNA samples are sought should have a meaningful right to opt-out.
- The technical competence of the members of the DNA Regulatory Board should be ensured.
- People ‘associated’ with a crime should not be brought under the ambit of the Bill, for the collection of their bodily samples.
References –
[1] Seventeenth Lok Sabha, Members Bioprofile, Dr. Harsh Vardhan, available at: http://164.100.47.194/Loksabha/Members/MemberBioprofile.aspx?mpsno=4776.
[2] See the text of the DNA Bill at http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/128_%202019_LS_eng.pdf.
[3] Lok Sabha, List of Business, 8 July, 2019, available at: http://loksabhadocs.nic.in/lobmk/17/I/LOB8.7.2019.pdf.
[4] Twitter, Jairam Ramesh, dated 18 October 2019 available at https://twitter.com/Jairam_Ramesh/status/1185169723010383872.
[5] Draft DNA Profiling Bill, 2007, available at: https://www.prsindia.org/uploads/media/draft/DNA_Bill.pdf (Last accessed on 05 November, 2019).
[6] Human DNA Profiling Bill, 2015 (working draft version), 16 January, 2015, available at: https://thewire.in/wp-content/uploads/2015/07/Draft-DNA-Bill-Jan-2015.pdf (Last accessed on 05 November, 2019).
[7] Statement of objects and reasons of the 2018 bill, which was based on Law Commission of India Report No. 271, Human DNA Profiling – A draft Bill for the Use and Regulation of DNA-Based Technology, dated July 2017, available at https://www.prsindia.org/sites/default/files/bill_files/Law%20Commission%20Report%20on%20DNA%20Profiling%20Bill_0.pdf.
[8] Justice K.S. Puttaswamy vs. Union of India, Supreme Court of India WP(C) 494 of 2012.
