Deoxyribonucleic acid (hereinafter referred to as “DNA”) is one of the most important forms of evidence that is used in current times. It is essential to make continuous improvements to the process of DNA collecting to keep up with the rapid advancement of technology. At this point, the collection of DNA samples from convicted offenders is a process that is mostly free of controversy. The rules that allow the collecting of DNA from those who are now jailed as well as those who have been incarcerated in the past have been frequently maintained by the courts, and the databases of DNA that have resulted from this have become valuable tools for analysing forensic evidence acquired from crime scenes.
Using the databases, law enforcement personnel can help exonerate those who have been unfairly convicted and divert their attention away from unnecessary investigations. In ‘Thogorani v. State of Orissa,’ the Court determined that while ‘Section 53 of the Code of Criminal Procedure, 1972’ (hereinafter referred to as “CrPC”) solely pertains to a medical practitioner examining the accused at the request of a police officer, the court has broader authority to ensure justice in criminal cases by instructing the officer to obtain blood samples from the accused and perform a DNA test for further investigation under ‘Section 178 of the CrPC’.
‘Science and Technology’ Minister Harsh Vardhan introduced the DNA Based Technology (Use and Regulation) Bill, 2019 to Parliament on July 8, 2019. By establishing a National DNA Data Bank and DNA Profiling Board, the Indian government is authorized to utilize data for schedule-listed forensic purposes, as stipulated in the bill.
At present, the bill stands withdrawn in 2023 because of the Criminal Procedure (Identification) Act, 2022, which was passed into law by the Indian Parliament on April 18, 2022, and it was also given presidential assent on the same day. The Identification of Prisoners Act of 1920, was superseded by this act, which permitted the collection of measures of convicted individuals and other individuals for identification and inquiry in criminal issues, as well as for the preservation of records and things connected therewith and incidental thereto.
Issue of Right to Privacy
The “Universal Declaration of Human Rights, 1948”, to which India is privy, stated 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.’ Along with that, even Article 21 of the Indian Constitution guarantees the right to privacy to its citizens.
The issue arises when discussing DNA fingerprint technology and the storage of fingerprints in a database, raising privacy concerns. The DNA strand, which comprises the most conclusive biological information about an individual and is both an essential and most private component, can be utterly misused. Due to technological advancements and the widespread availability of various applications, it is conceivable that the investigating authorities might improperly employ the contested material.
Notwithstanding this, it remains conceivable that an erroneous identification or some form of perplexity may ensue during the DNA processing, constituting a flagrant infringement upon the protection of the individual’s rights and liberties. Granting it statutory status could pose a substantial and impending threat in such a situation. Although it reiterates its steadfast confidence in DNA technology, the present iteration of the measure does attempt to mitigate certain apprehensions.
However, “Facts essential to explain or introduce a fact in dispute or relevant fact” is the subject of Section 9 of the Indian Evidence Act, 1872, (hereafter referred to as ‘IEA’) which deals with the subject matter. In ‘Kanti Devi v. Poshi Ram,’ the Court rendered a decision that stated that “a legitimate DNA test is considered to produce scientifically accurate results.” However, this does not exempt one from ‘Section 112 of the Acts’ conclusiveness.
It is also a constitutional obligation of every citizen to cultivate a scientific mindset, and an inquisitive spirit, and to pursue excellence in both personal and collective endeavours, so that the nation may perpetually ascend to greater levels of accomplishments and progress.
Loopholes of the Bills
In addition to its many merits, the bill contains provisions that could be held unconstitutional and prompt court intervention. For instance(s),
- A “Distinguished Person” may serve as vice president, as per ‘Section 4(b)’, and an “Expert” may serve on the board, as per ‘Section 4(k)’. This confers authority upon the government to select an individual of interest and the element of freedom and impartiality of the authorities is questioned.
- Clause 27 of the bill grants the government the authority to appoint the director of the “National DNA Data Bank”.
- Chapter IV of the Bill, titled “Obligations of DNA Laboratory,” does not impose any data protection or privacy obligations on the data processor. As data collectors, DNA laboratories are not required to adhere to data collection protocols designed to safeguard personally identifiable information.
- Clause 57 of the Bill prohibits any court from exercising jurisdiction over an action or process that the Board is authorized to deliberate. The legislation grants DNA Regulatory Boards authority that a court might otherwise lack.
Problem with the Databases
There are three distinct kinds of databases:
- In the least comprehensive database, culpable, as in the person accused of that particular crime, samples would be included.
- In a significantly more extensive database, DNA profiles obtained through routine testing of inhabitants residing in high-crime regions, regions where the probability of crime is more like slums or small colonies, would be collected.
- In regional, or national testing, everybody has to give their DNA sample without bias. It is said that this could help guilt-free individuals in evading unnecessary police investigations.
Critics opposed all three databases because their samples contain more information than what is required by criminal investigators. Even though a DNA profile can ascertain whether a person was present at the scene of the homicide; in contrast to fingerprints, it can identify any genetic abnormalities or diseases such as AIDS that he may have carried. This unnecessary information application raises civil liberties concerns, and most importantly, it blatantly attacks privacy.
It is contended that DNA profiles contain excessive amounts of personal information to be stored in databases, especially because databases can be hacked easily. Hackers have repeatedly demonstrated their versatility in gaining unauthorized access to data. The Experian data compromise resulted in the exposure of the private information of over 123 million individuals.
The “DNA Technology (Use and Application) Regulation Bill” was withdrawn in 2023 for two primary reasons: it was unnecessary and it sparked a considerable amount of controversy.
The DNA Bill was largely superfluous as the “Criminal Procedure (Identification) Act of 2022” already gave the authority to the government to collect and store DNA samples from various individuals and it sort of accomplished some of the same objectives. It is argued that an attempt to enact novel legislation would exacerbate existing complications and redundantly regulate matters that were already established.
Even repeated concerns were raised by some people regarding the potential misuse of private genetic information regarding this DNA Bill. Critics from opposition parties, legal scholars, and civil society organizations collectively expressed dissent towards the legislation due to its ‘substantial data collection’, ‘protracted data storage’, and ‘inadequate privacy safeguards’ as discussed above.
Ultimately, support for the measure diminished due to the government’s reluctance to comprehensively tackle these concerns and incorporate enhanced privacy rights along with that. Yes, the sentence is correct, but for improved clarity and flow, you might consider a slight revision:
As a result, the DNA Bill was defeated in Parliament on these grounds. Consequently, the government chose to pursue a more streamlined approach within the existing Criminal Procedure system by withdrawing it. Complete DNA management in India was then intentionally left unresolved for subsequent discourse and this opens the gate to a new DNA bill prospect shortly, a more elaborate and reasonable one; because in the end, the bill cannot be against the basic fundamental rights of the citizens.
- Thogorani v. State of Orissa, 2004 Cri LJ 4003
- Kanti Devi v. Poshi Ram, AIR 2001 SC 2226.
- Sarah B Berson, Debating DNA Collection, National Institute of Justice (Oct. 28, 2009), https://nij.ojp.gov/topics/articles/debating-dna-collection.
- The Criminal Procedure (Identification) Act, 2022 – Notes On ‘Modernising’ The Criminal Justice System, (Apr. 26, 2022), https://legal.economictimes.indiatimes.com/news/industry/the-criminal-procedure-identification-act-2022-notes-on-modernising-the-criminal-justice-system/91090907.
- Louise Gaille, 11 Significant DNA Database Pros and Cons, (Apr. 17, 2018), https://vittana.org/11-significant-dna-database-pros-and-cons.
- DNA Fingerprinting and Justice Delivery System: A Contribution to a Shifing Discourse, 29 ALJ (2021-22) 93s
- The Journey from One Cell to Another: Role of Dna Evidence, (2004) 8 SCC J-17
- Mike Redmayne, “The DNA Database: Civil Liberty and Evidentiary Issues”, 1998 Cri LR 437
This article is written and submitted by Vanshita Srivastava during her course of internship at B&B Associates LLP. Vanshita is a 3rd-year BBA LL.B (hons.) student from Symbiosis Law School, Pune.