The Law Commission of India has, in its 271st Report, come out with a Draft Bill governing DNA profiling.
Before looking at the proposed provisions of the Draft Bill, it is necessary to delve into the history of the issue.
On 23 June 2006, Sections 53A and 54 were added to the Code of Criminal Procedure to govern the collection of bodily fluids and other biological samples from suspects, and also provided for DNA profiling.
After that, in 2014, acting on the basis of a PIL filed by NGO Lokniti Foundation asking why India does not have a national DNA database to address the issue of thousands of unclaimed dead bodies that are reported annually, the Department of Biotechnology 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 Bill came in for criticism because it had provisions for linking DNA profiling to determine genetic traits and also because it did not adequately provide for protecting the right to privacy. The ‘List of Matters for DNA Profiling’ allows for data collection on maternity or paternity disputes, issues relating to pedigree, surrogacy and immigration or emigration as well. The Bill contained provisions for a volunteer’s index and collection of “such other DNA indices as may be specified by regulation,” which was termed as problematic because one could not be sure who might be coerced into giving biological samples under these provisions.
Now, the Law Commission has come out with a slew of recommendations assuaging the aforementioned concerns, and also providing for a Draft Bill. This is because, according to the Commission, various countries over the world – even a country like Trinidad & Tobago – has standalone legislation to govern the use of DNA profiling and prevent its misuse.
In the Draft Bill, the Commission has put in a mechanism which permits processing of DNA samples only for 13 CODIS loci, which would not violate in any way the privacy of a person, and as a result will never go beyond identification of a particular person. The strict adherence to 13 CODIS loci will eliminate the apprehension of revealing genetic traits.
The Draft Bill titled “The DNA-Based Technology (Use and Regulation) Bill, 2017″, has substantially modified the one prepared by the government earlier.
Some important recommendations of the Commission are :
- A statutory body called the DNA Profiling Board, which will undertake functions such as laying down procedures and standards to establish DNA laboratories and granting accreditation to such laboratories; and advising the concerned Ministries/Departments of the Central and State Governments on issues relating to DNA laboratories. It would also advise on all ethical and human rights issues relating to DNA testing in consonance with international guidelines.
- Strict confidentiality is to be maintained with respect to the use of DNA profiles, and anyone causing a breach of the same shall liable for punishment of imprisonment, which may extend up to three years and also fine which may extend up to Rs. 2 lakh.
- The DNA experts may be specified as Government Scientific Experts and be notified as such under clause (g) of sub-section (4) of section 293 of the Code of Criminal Procedure.
- An undertrial can request the court for another DNA test to be conducted if it was found that the previous samples had been contaminated and hence had become unreliable.
Recently, the government had informed a Supreme Court bench of Justices Dipak Misra, AM Khanwilkar and M Shantanagoudar that it was in the process of bringing in Human DNA Profiling Bill to enable the authorities to maintain records of unidentified and unclaimed dead bodies or missing persons.
It remains to be seen whether this Bill would include and adapt the recommendations of the Law Commission and provisions and safeguards of the Bill drafted by it.
