by Priyanka Jaiswal 24 April 2021
The DNA Technology (Use and Application) Regulation Bill, 2019 is introduced for expanding the application of DNA-based forensic technologies to support and strengthen the justice delivery system of the country. The Bill seeks to regulate the usage of DNA technology for the purposes of establishing identity of victims, suspects, offenders, missing persons and unknown deceased person, just to ensure that justice is served. Though it has been stated by the Union Minister of Science and Technology, Dr. Harsh Vardhan, that the bill has adequate steps to safeguard the privacy of the individuals, but there are certain underlying concerns in the bill that tend to raise eyebrows.
Issue of Free Consent
A primary concern is the collection of DNA for the purposes of profiling and the consent that is to be obtained. A discriminatory provision in this regard finds its place in clause 21 of the bill. Accordingly, a written consent is required from those persons whose samples are to be collected. The problematic factor here is that the consent is to be obtained only if the person is arrested for an offence with imprisonment of 7 years or less. On the other hand, no consent is required for taking the samples of a person who is arrested for an offence punishable with death or imprisonment for more than 7 years. This violates Article 14 of the Indian Constitution, that mandates equality to all and along with that this provision does not have a reasonable nexus with the object that is sought to be achieved by the proposed Bill, which is the prime requirement stated in State of West Bengal v. Anwar Ali Sarkar. So if the purpose of the law so proposed is to secure sentencing on the basis of scientific samples as evidence, then such kind of classification based on the serious of the punishment and the term of imprisonment has no rational nexus with the objective that the proposed Bill seeks to achieve.
Magistrate order substitute for Free Consent
It is pertinent to note that clause 21(2) of the bill states that of the consent is not given, then an application can be made to the magistrate having jurisdiction, for obtaining such samples. Here the magistrate will decide whether the collection of the sample is necessary or not and if the decision is in affirmative, then the samples will be collected even without the consent of the person. The bill here again fails to elaborate on the ‘reasonable cause to believe’ element and has opened windows for misinterpretation.
Contradicting the proportionality and legitimacy threshold of Right to Privacy
The involuntary sampling of DNA profiles violates the right to privacy enshrined in Article 21 of the Constitution and is in contradiction to the proportionality and legitimacy threshold imposed in the case of Justice K.S. Puttaswamy (Retd) v. Union of India. The pursuit of legitimacy ensures that there is no arbitrary state action and that the encroachment on the right is not disproportionate to the purposes of the law. The Parliamentary Standing Committee on Science and Technology, has pointed out that the bill can be misused in many ways as the DNA profiles can reveal extremely sensitive information and may lead to community based profiling, thus striking down the legitimate purposes of the bill. The right to privacy of under-trials and suspects will be infringed if their DNA is stored in a data bank. A glaring example of such an abuse is mentioned in clause 35(b) of the bill, which allows the access to the information contained in Data Banks for the purposes of training. The use of human genome, that contains highly sensitive data, poses a risk to the privacy of the individual whose DNA profiles are stored in Data Banks, whether obtained with or without consent. The level of discretionary power granted under the Bill have also not been properly taken care of. Clause 54 allows the government to supersede the board through a simple notification. It is therefore a matter of concern considering the legitimacy threshold. Additionally clauses 56 and 57 impute excessive power that may be susceptible to misuse. The former clause allows the central government to amend the schedule which in turn has the risk of potentially expanding the scope and intention of the bill, which the latter restricts the power of judicial review from the operations of the DNA regulatory board.
Conclusion and Recommendations
Something which even worsen the situation is the absence of a Data Protection Law in the country. The sensitive data from the DNA Profiles of an individual can be misused in a number of ways, therefore it is important that the present DNA technology regulation bill is made to pass the anvil of the Data Protection framework that exists in the present times. Having said so, there is a need for curtailment of excessive discretionary powers that has been granted under the proposed bill. All such powers should have proper limitations and should be narrowly tailored to fulfil the objectives of the bill. Moreover, standard timelines for data collection, retention and deletion should be mentioned for more clarity. It is also important to specify the penalties that will be imposed in cases of violation of the provisions of the bill and the remedies that will be available in cases of misuse. A strand of DNA is the most fundamental element of an individual and has the ability of being grossly misused. Certain safeguards and a system of checks and balances will strengthen the law and ensure that the true sprit of the legislation remains intact.
Priyanka Jaiswal, Final Year BA.LLB (Hons) student at National University of Study and Research in Law, Ranchi, Jharkhand, India.