A Bill that provides for regulation of use and application of DNA technology for establishing the identity of certain categories of persons, including offenders, victims, suspects and undertrials, was passed in Lok Sabha. The Bill was introduced by Science and Technology Minister Harsh Vardhan in the Lower House, even as the Congress expressed concern over privacy issues and demanded that the Bill be sent to the Standing Committee for further scrutiny.The DNA Technology (Use and Application) Regulation Bill, 2018, would ensure that laboratories for DNA profiling are accredited and regulated and DNA data bank is set up.

Context:
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. 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. Further, DNA profiling can be used in civil matters, such as parentage related disputes.

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. The Commission submitted its report as well as a draft Bill in July 2017.2 In this context, the DNA Technology (Use and Application) Regulation Bill, 2018 was introduced in Lok Sabha on August 9, 2018. The Bill regulates the use of DNA technology for the purpose of identification of persons in criminal and civil matters.

Highlights of the Bill:

• The Bill regulates the use of DNA technology for establishing the identity of persons in respect of matters listed in a Schedule. These include criminal matters (such as offences under the Indian Penal Code, 1860), and civil matters such as parentage disputes, emigration or immigration, and transplantation of human organs.
• The Bill establishes a National DNA Data Bank and Regional DNA Data Banks. Every Data Bank will maintain the following indices: (i) crime scene index, (ii) suspects’ or undertrials’ index, (iii) offenders’ index, (iv) missing persons’ index, and (v) unknown deceased persons’ index.
• The Bill establishes a DNA Regulatory Board. Every DNA laboratory that analyses a DNA sample to establish the identity of an individual, has to be accredited by the Board.
• 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.
• 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. Profiles in the crime scene and missing persons’ index will be removed on a written request.

Key Issues and Analysis:

• 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.
• 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.
• 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.
• 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.

Comparison of fingerprint law with the Bill: