DNA Profiling in the India (Towards the New age DNA Technology Use and Application Bill)

13th February, 2019 - 10:10 am Categories: News & Updates 0 Comments

A decade ago, the whole country was sent flying into a state of bewilderment by the news headlines flashing on the TV screens that morning. An individual named Rohit Shekhar Tiwari had filed a paternity suit against three times Chief Minister of the state of Uttar Pradesh, Shri Narayan Dutt Tiwari, a political stalwart by all means. After a long and bitter tussle between Mr Tiwari and the Delhi High Court, he was finally compelled to a DNA mapping test which subsequently confirmed his fatherhood. Failing to refute the science behind it, Mr. Tiwari finally accepted Rohit as his son and married his mother, Ujjwala Tiwari. Thus a saga of utter inconclusiveness ended with the interference of this ‘now so prominent’ technology of DNA profiling. DNA stands expanded as Deoxyribonucleic Acid, the fundamental building blocks of the building called Life. A DNA pattern is fundamentally distinctive from arguably every other DNA pattern that exists, the only exception being in the case of identical twins. So, a DNA can roughly be understood as a unique identity card provided to us, by the nature. The identity provided by this card is beyond challenge and to an extent, even unquestionable, which now has been well established by a plethora of judgements worldwide. From verifying  bizarre claims such as being Aishwarya Rai’s son(YES, a man in Andhra Pradesh has done that!) to identifying and uniting families after disastrous incidents, this tech has a large portfolio of usages and is undeniably a ground breaking technology in today’s world

DNA profiling and fingerprinting came into use around three decades ago, in the late 1980s and the first criminal case in which this technology was used, was for a case in a village in the United Kingdom, where the technology indirectly helped in nabbing a criminal diagnosed with psychosexual pathology and guilty of the rape and murder of two minors. This case catapulted the technology into worldwide attention and has exponentially evolved ever since, helping in the successful conviction of millions of criminals.

DNA fingerprinting has been a useful tool in law enforcement as it works both ways, vis securing correct convictions and also exonerating the innocent. Furthermore, DNA fingerprinting unlike other forensic evidence, can be collected easily and sustains for long thereby increasing chances of accurate analysis by manifold. But as every coin has two sides, the DNA profiling technology too, has a darker and gloomier side where the misuse of the data so obtained can result in huge damage to the individual and to the society as a whole.

This brings us to the question, that how important it is to regulate the said technology and streamline its usage only for the benefit and betterment of the society and how can it be done. With a technology with extensive usage such as this one, regulation cannot be merely done by making changes to the existing law, rather it requires to be controlled and dealt by a special law. This question was taken up by the parliament through the Department of BIOTECHNOLOGY, when it came up with ‘The use and regulation of DNA based technology in Civil and Criminal proceedings, Identification of missing persons and Human remains Bill, 2016’. The parliament forwarded the bill to the Law Commission of India and the bill was edited and redrafted as “The DNA technology (Use and Regulation) Bill, 2017”. The bill has been passed in the Lok Sabha and is awaiting for the Rajya Sabha’s confirmation and the Presidential Assent.

Uses of the DNA Profiling Technology

The DNA technology has both Civil and Criminal uses in today’s society. Other than extensive use in criminal cases such as corroborative evidence and the identification of DVIs (Disaster Victim Identification), the technology is also used in civil matters such as determination of Kinship and establishing biological parentage. This technology is also being used in research to cure genetic defects from being carried over to the offspring as well as detecting genetic flaws to cure genetic diseases such as Cancer, Diabetes and Alzheimer’s disease. It also has further medical applicability as the technology is used to match the tissues of the donor and recipient in cases of organ donation. With the advent in newer methods of profiling and analysis, the usage of DNA in various other fields will only grow with time. And that necessitates the discussion of the next part, the International human rights aspect attached to the technology and the scope of its abuse and how other societies across the planet have, or are planning to deal with it.

Present legal conundrum around DNA profiling in India

In India, the legal position of DNA fingerprinting has mostly remained dicey, surviving among two opposite poles of attaining the truth or respecting individual privacy. The Constitution under Article 51A(h) and (j) casts duty upon the citizens to develop scientific temper, humanism and the spirit of Inquiry and reform to strive towards excellence in individual and collective activity and thereby the parliament can legitimately undertake and promote technical and scientific methods to expedite the criminal justice system as provided under the union list.

Section 9 of the Indian evidence Act, 1872  act deals with ‘facts necessary to explain or introduce a fact in issue or relevant fact’. Further, if the evidence of an expert is relevant under section 45, the ground on which such opinion is derived is also relevant under section 51. Section 46 deals with facts bearing upon opinions of experts. The opinion of an expert based on the DNA profiling is also relevant on the same analogy. However, the question that is actually perplexing is that whether a DNA analysis can be legitimately directed or not. In special cases, such as Rape, the CrPC vide Section 53-A has provided that an accused of rape can be examined by a medical practitioner, which may include the collection of bodily substances from the accused for DNA fingerprinting.

Nemo Debet Proderese Ipsum

The issue of DNA fingerprinting cannot be discussed without the angle of self incrimination under Article 20 (3) and the question of violation of private space of an individual and its consequences thereof under Article 21 of the Constitution of India . The various judicial pronouncements under these articles have hung around like a pendulum resulting in widespread uncertainty regarding the legal stance of the DNA technology. Let us take into consideration, a few of the Landmark judgements that have touched upon the topic of the interplay between the DNA fingerprinting technology and the right against self incrimination and of privacy.

Bending upon the discussion of self incrimination is virtually impossible without discussing the position established by the Hon’ble Supreme Court in the case of State of Bombay v. Kathi Kalu Oghad &ors[1]. An eleven Judge bench of the court held that:

When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ‘personal testimony’. The giving of a ‘personal testimony’ must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression ‘to be a witness’.  Thus the court established that, giving of fingerprint or collection of any other evidence of ‘private nature’ does not essentially attract the maxim nemo debet proderese ipsum, i.e., no one can be required to be his own betrayer; as the latter would mean that a person has produced knowledge through his own volition that would establish his guilt, either by way of undue influence, coercion or threat or not.

Further, the Hon’ble Supreme Court in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for women[2], whilst pressing upon the significance of DNA testing in the process of administration of justice held:

When there is apparent conflict between the Right to Privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed.

Moving forth to the roving issue of the privacy of an individual, provided through Article 21 of the constitution, one question constantly revolves around the application of DNA technology- How fundamental is the right to privacy of an individual and the degree of absoluteness if there exists one.

In M P Sharma v. Satish Chandra[3], an eight-Judges Bench of the Supreme Court denied the existence of such a right while dealing with the case of search and seizure, observing:

A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.

Contrastingly, in Ram Jethmalani v. Union of India[4] Supreme Court dealt with the right of privacy elaborately and held as under: Right to privacy is an integral part of right to life. This is a cherished constitutional value, and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner. The solution for the problem of abrogation of one zone of constitutional values cannot be the creation of another zone of abrogation of constitutional values. The notion of fundamental rights, such as a right to privacy as part of right to life, is not merely that the State is enjoined from derogating from them. It also includes the responsibility of the State to uphold them against the actions of others in the society, even in the context of exercise of fundamental rights by those others.

Further, in Justice K S Puttaswamy (Retd.) v. Union of India[5], the Supreme Court while dealing with the case of “Aadhar card” (UIDAI) observed that there have been contradictory judgments on the issue but the law laid down in M P Sharma[6] and Kharak Singh[7], if read literally and accepted as a law, the fundamental rights guaranteed under Article 21 would be denuded of vigour and vitality. The Court referred the matter to a larger bench for authoritative interpretation of law on the issue and the bench affirmed the right to privacy to be fundamental in nature.

Further, the compelling State interest is just one aspect of the broader ‘strict scrutiny test’, which was applied by the Court in Anuj Garg v. Hotel Association of India[8] The other essential facet is to demonstrate narrow tailoring, i.e., the State must demonstrate that even if a compelling interest exists, it has adopted a method that will infringe in the narrowest possible manner upon individual rights so that a delicate balance is maintained between the fundamental rights of the individual as well as the larger interest of the society.

In light of the confusing legal position described in aforementioned paragraphs, it was necessary to bring in a special dedicated legislation that governs the uses and Application of DNA Technology in India.

The DNA Technology (Uses and application) Bill and its highlights

• The Bill is aimed at regulating DNA technology usage for establishing the identity of persons in respect of matters which are laid down in the IPC, and also, 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 and for various civil matters such as migration, parentage disputes, transplantation of human organs etc.
• The Bill when finalized as an Act, will set up a DNA Profiling Board. The Board, with 12 members, will be the supreme regulatory authority that will grant accreditation to DNA laboratories and lay down guidelines, standards and procedures for their functioning. It will advise central and state governments on “all issues relating to DNA laboratories”. It will also be the sole authority to make recommendations on ethical and human rights, including questions of privacy and issues related to DNA testing.
• The members of the Regulatory Board shall consist of experts in the field of biological sciences; member of the National Human Rights Commission; the director-general of the National Investigation Agency(or nominee); the Director of CBI(or nominee); the Director General Police of a state; the Director of the Centre for DNA Fingerprinting and Diagnostics; Director of the National Accreditation Board for Testing and Calibration of Laboratories; Director of the Central Forensic Science Laboratory; Officers not below the rank of Joint Secretary from the Ministry of Law and Justice and Ministry of Science and Technology; and an officer not below the rank of Joint Secretary with knowledge and experience in biological science.
• The Bill shall establish a National DNA Data Bank and various Regional DNA Data Banks, with the purpose of maintaining important indicators such as crime scene index, suspects or undertrials index, offenders index, missing persons index and unknown deceased persons index. The DNA laboratories are required to share DNA data so collected during analysis, with the Data Banks.
• As a general rule, the samples of DNA can only be collected with the written consent of the individual but for offences with punishment of more than seven years of imprisonment or death, consent is not required. The magistrate may, if he is satisfied that there is sufficient and reasonable cause, may order for taking of bodily substances.
• No laboratory shall undertake DNA testing without obtaining accreditation from the Board. The Board may, within a period of ninety days from the receipt of application grant accreditation to such laboratory or renew it, subject to such conditions as it may deem fit and on the occasion On the revocation or suspension of accreditation of the DNA laboratory, the laboratory shall hand over all DNA samples and records relating to DNA testing from its laboratory to such DNA laboratory as may be directed by the Board
• The National DNA Data Bank shall, on receiving a written request of a person who is neither an offender nor a suspect or an undertrial, but whose DNA profile is entered in the crime scene index or missing persons’ index of the DNA Data Bank, for removal of his DNA profile therefrom, remove the DNA profile of such person from DNA Data Bank under intimation to the person concerned. The Bill provides for the removal of DNA profiles of suspects on filing of a police report or court order, and of undertrials on the basis of a court order.
• The board shall take all necessary steps to ensure that information relating to DNA profiles are protected against access, use or disclosure not permitted under this Act or any regulations made thereunder and that all DNA data, samples and records thereof shall be used only for the purposes of facilitating identification of the person and not for any other purpose
• Whoever wilfully discloses such data in any manner to any person or agency not entitled to receive it under this Act shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to one lakh rupees; wilfully obtains individually identifiable DNA information from the DNA laboratory which may extend to three years and also with fine which may extend to one lakh rupees; accesses information otherwise than in accordance with the provisions of this Act; knowingly and intentionally, destroys, alters, contaminates or tampers with biological evidence which is required to be preserved under any law for the time being shall be punishable with imprisonment for a term which may extend to five years and also with fine which may extend to two lakh rupees.

Our Take on the bill

A strand of DNA being a fundamental and the most private element of individual containing determinative biological information about the person, possesses the ability of being grossly misused. With the growth in the technology, and increase in varied applications pose the risk of such information being misused by the investigating agencies. For example. The bill does not specify if samples collected in civil matters will be store in the data banks or not, leading to acute privacy concerns. Also the question whether DNA technology is foolproof, and whether the proposed law adequately addresses the possibility of abuse, is largely unanswered.

There still remains a chance where a wrong match could be generated or some mix up occurs while processing the DNA resulting in flagrant loss to the persons rights and liberties and in such a case, giving it a statutory position could be a great impending risk. The new draft Bill does try to address some of these concerns, although it reiterates complete faith in DNA technology. DNA profiling is “an accurate and well established scientific technique”, says the Law Commission report that has proposed the new draft. Questions such as whose DNA may be collected and what the circumstances would be, how important is the consent of the individual, who can access the database, and the circumstances under which a record can be deleted, have been raised repeatedly but as every new piece of legislation, this one too has its fair share of uncertainties and reservations and how it evolves is a matter of great anticipation.

Prevailing DNA laws in other countries and the International Human Rights aspect

• United States

The DNA database in the United states was developed by the Federal Bureau of Investigation as Combined DNA index system (CODIS). The US Supreme Court in Maryland v. King[9] held that in cases where officers are making an arrest for a charge of serious offence, they are authorised to take DNA samples from the accused individuals by way of collecting cheek swabs and the same can be legitimately used as evidence in the court of law and such intrusions of a person’s privacy is valid under the Fourth Constitutional amendment.

• United Kingdom

The Criminal Justice and Public order Act in the United Kingdom is the basis for the National DNA Database (NDNAD). This act classifies certain offences as ‘recordable’ and anyone being processed under the provisions of such offences can be compelled to provide DNA samples to the police. The police, to an extent, is permitted to take DNA’s of the arrested person before the investigating process begins so as to make the process faster.

• China

China passed a law allowing the Ministry of Justice and the Ministry of Interior to establish DNA Banks.

The essential things incorporated in this legislation are:

1. The offenders – convicts as well as suspects who are sex offenders have to provide for such samples voluntarily.
2. In case of refusal the prosecutor has the power to compel the person to do so.
3. The written and photographic samples of DNA can be retained for 10 years.
4. People who are suspected of committing a crime for which punishment is more than 5 years are required to give non intimate samples.

IN the case of DNA technology, the laws of the nations and the question of the fundamental human rights have mostly been at lock horns. The right to privacy has been enunciated as a basic human right in many international documents. The Universal Declaration of Human Rights, 1948 states that ‘no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, attacks upon his honour or reputation. Everyone has a right to protection by law against such interference or attacks’. Further, the ICCPR, under its ‘minimum guarantees’ in Article 14(3)(g) mandates that everyone has a right not to be compelled to testify against himself or confess guilt.

In case of Disaster Victim Identification the International society of Forensic Genetics has laid down guidelines that DNA laboratories must follow while dealing with such cases in order to adhere to the moral obligations that are begotten upon them. Further the creation of DNA database has many ethical and legal concerns which need to be addressed properly to eliminate the possibility of fundamental human rights violation.

There are three possibilities in which database can be created and dealt with, each of them having its own set of advantages and drawbacks:

• A system based on a general DNA fingerprinting analysis of the population and a conservation of the DNA profile analysis of all the evidence found at the crime scene.
• A system based on the DNA analysis of samples for a particular list of crimes only and the recording of the DNA profiles of all the evidence found at the crime scene for these particular crimes.
• A system based only on the specific analysis of a case, the taking of samples from an individual who is known to be connected to a fairly high degree with the crime under investigation and a comparison of the evidence which has been collected in this particular investigation.

Author: Mr. Shubham Borkar, Senior Associate – Litigation and Business Development and Asish Mishra– Intern, at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at shubham@khuranaandkhurana.com or at www.linkedin.com/in/shubhamborkar.

References:

[1] AIR 1961 SC 1808

[2] AIR 2010 SC 2851

[3] AIR 1954 SC 300

[4] (2011) 8 SCC 1

[5] (2015) 8 SCC 735

[6] Supra, at note 4

[7] AIR 1963 SC 1295

[8] AIR 2008 SC 663

[9] 133 S. Ct. 1958 (2013)