In the 21st century, technological advancement and innovation have led the human race to achieve several important feats and reach levels of reliability that have never been seen before. Especially in a field like ours, where so much importance is given to the individuality of the person involved in a crime, true and proper identification of a person is imperative for the effective delivery of justice.

With courts employing technological systems to go about their day-to-day activities, such as using online directories, etc., it is the need of the hour that modern technology also be employed in the identification of people which entail with it several implications such as deep understanding of the crime scene, solving blood relation problems, etc. With India having a rich and ancient history of medical prowess, it is increasingly important for the legislature and the judiciary to provide relevant and debated laws regarding the same.

In 2018, a draft bill concerning the regulation of DNA technology was cleared in the Lok Sabha but the same lapsed due to the dissolution of the term of that Lok Sabha. In 2019, after a new formation of the Lok Sabha, the bill[1] was again introduced and since then, it is currently under consideration in the Lok Sabha.

This research article aims to delve into the whole context of DNA profiling laws in India, the current laws surrounding the concept and analyse the bill that is currently under consideration in the Lok Sabha. And can also be seen as an honest attempt to suggest new perspectives and ways to look at the laws regulating the DNA technology in the Indian legal context, while drawing comparisons and distinctions with the developments all over the global world.

Concept Of DNA Profiling

By the term DNA, it is basically meant that it is the "genetic material that is present there in all living cells." There is a different sequence and a distinct identity of DNA for every person on Earth. DNA profiling technique is basically a scientific method for the identification of a specific individual and to distinguish between a couple of people.

The forensic scientists analyse and examine the material containing the DNA of a particular person such as tissue, hair, sperms, etc., and then they match the DNA with the concerned individual. There are several methods that are involved in the DNA profiling such as "DNA Amplification, Mitochondria analysis, Mapping fine grained sequence, etc."

The application of the DNA profiling allows the authorities to establish family relationships, and properly ascertain the paternity of a child by taking DNA from the mother and the father. It is also used in rape cases where the genetic remains of the accused are used to identify the accused and also dead bodies can be correctly identified where it is difficult to ascertain the identity prima facie.

The DNA profiling technology can also be used in the plant breeding and animal breeding programmes. As things stand, DNA fingerprinting is something which is generally very useful for the enforcement of legal processes by the authorities.

DNA Databases basically stores the majority of the information relating to a person's genetic material and there are several such databases all over the globe, the largest one being in USA. However, with such huge databases debates have been invoked around the world concerning the privacy issues and violation of fundamental rights. In USA, FBI generally maintains the DNA database and cannot illegally enter the DNA data, and must also remove/delete the data in case the accused person is acquitted or not convicted.[2]

In a criminal trial, the DNA evidence can be used in different ways such as Familial DNA searching where the DNA found shows a strong resemblance with the offender. This method basically searches for the "close relatives" of the accused. Other methods such as Partial matches and Surreptitious DNA collecting are also engaged while using DNA technology in criminal proceedings by the authorities.

DNA Profiling Laws In India

As things stand currently, there is no specific laws regulating the DNA profiling technology and the databases concerning it. The whole responsibility is left on the judges to decide on the aspect of admissibility of DNA evidence and the testing surrounding it. There are also some specific provisions of the Indian Evidence Act and CrPC that deal implicitly with the same, but the absence of explicit regulatory law is something that should be acknowledged by the legislation.

The DNA-based Technology Regulation Bill could not be passed in the Lok Sabha due to the lapsation by the dissolution of union cabinet in 2018. However, in 2019, the bill was again introduced but it is "under consideration" before the union cabinet.[3] The main intention behind the introduction of this bill is regarding the construction of a unified "DNA database". This will include the genetic profiles of the accused, victims, etc. Currently, Section 45 of the Indian Evidence Act, 1872, deals with the "opinion of the experts upon a particular subject."

Whether or not this section can accommodate the opinion of a "forensic expert" is unclear. Section 53 of the CrPC allows a police officer the authorization for taking the opinion of a medical practitioner in "good faith." And similarly, Section 53A included the rape victims as well where that bodily substances could be taken for the process of DNA profiling. These sections implicitly allowed the police officer to collect the DNA samples of the people involved in the proceedings but the admissibility of the same is upon the discretion of the judge.

The "271st Law Commission Report of 2017"[4] concluded that the bill was not against the aforesaid provisions which implicitly provide for the DNA profiling. It recommended that a DNA profiling board be constructed which shall be the responsible for the guidelines and supervision.

And also, the creation of a national "DNA Data Bank" by the government at the centre. The commission ensured that all the DNA profiling activities must meet up the stringent standards and are in accord with the constitution of India. The Bill also provides the guidelines for the specific removal of data if requested or through a court's order.

Global Evolution

In the Indian context as well as in the global context, the technological and scientific advancements hold a special place. The legal reformation as well as balancing the individual personal rights of the citizens is always a priority for the nations to maintain a balance.

United Kingdom has been held in high regard when it comes to the usage of DNA technology. The National DNA Database (NDNAD) was constructed in 1995 in the UK after extensive discussions following from earlier years. The 2001 act also allowed for the authorities to store indefinite DNA profiles of the suspects and also for people who voluntarily agree to give their samples.

The success of this technology in UK has also been because of the efficiency of the FSS (Forensic Science Service) and also the fact that the police agencies were provided "direct funding and good incentives" from the government. World's first DNA database was constructed in 1995 in the UK and was spearheaded by the FSS. In the UK, the database system is used by the searching of "suspected" profiles. In 2020, the NDNAD had around 6 million profiles and is maintained by the Home Office which is a governmental body in the UK.[5]

If we compare this with the United States of America, there is the National DNA Indexing System (NDIS) where only the convicted profiles are created. This is overlooked by the Federal Bureau of Investigation (FBI), and the NDIS was launched in the 1990s. All the fifty states of the country participate in the NDIS.

There was also the creation of the Combined DNA Index System (CODIS), where the DNA profiles can be compared by the authorities. This system can also conduct searches along various domains such as arrestee, offenders and forensic, where the forensic index basically contains the evidence that is gathered from the crime scene. As of 2021, the CODIS consisted of more than 20 million profiles in its directory.

The main authority that is responsible for time-to-time revision and issuance of guidelines and standards is FBI.[6] In a landmark case[7], the Supreme Court of USA upheld the validity of the collection of DNA Samples and the court also commented upon the admissibility of the same. The court held that the same would not be considered to be a violation of the person's privacy. It can be seen that India is some 30 years behind the well-developed nations like USA and UK.

In the Lokniti Foundation vs. Union of India[8], the need for a national database containing DNA profiles was stressed upon which also entailed a plethora of discussions and deliberations with the government. It is imperative for the national government to not only have a separate act regarding the establishment of a DNA database but it is also the need of the hour that judiciary clears issues such as violation of privacy of an individual that is involved with the collection and the creation of DNA profiles.

It is also important for the government at the centre to cooperate accordingly with the state governments and the police agencies and also to provide appropriate incentives and technology to the authorities that are involved with the collection of the DNA samples and also the creation of such databases as can be seen in the case of the United Kingdom. Proper training should be employed at the ground level to the officers and the relevant characters. Acc. to the data the UK government allocated some 5 million pounds for the same.

An important thing to note here is that DNA profiling and maintaining in the foreign countries is now considered a general practice rather than a new invention that is to be used with caution, it is the integration of this technology that has led to the rapid increase in the efficiency of the criminal investigation and law process.

Concerns With The DNA Bill

Lastly, it is important to discuss the conflict of the proposed DNA bill with the fundamental rights of an individual, majorly concerning Article 20 and 21. The foremost concern that has been in the deliberations is regarding the independent nature of institutions that will conduct the forensic analysis and collection. It is imperative to ensure that they are functioning with adequate amount of independence and autonomy so as to prevent the misuse and tampering of the data collected or the profiles generated.

Another concern with the proposal of this bill is that regarding the allocating adequate resources such as proper training, knowledge, manpower, etc., for the construction of the DNA database. Collection of the DNA evidence from the crime scene is an inherently skilful task and the authorities should be equipped with appropriate equipment as well as knowledge, otherwise the chances of destroying the evidence at the crime scene are very high. [9]

Currently, there is no statutory protection granted to the person whose information gets leaked, this is linked with the primary concern regarding the DNA profiling technology. As previously mentioned, there are no substantive laws giving the victim a remedy in case their information gets leaked. In the bill, there are no sanctions on the authorities in case there is a leak of information from their side.

Also, Section 57 of the proposed DNA bill, completely disregards the authority of the courts in the matter and the matter is solely to be dealt by the board, that is to also constructed by this bill. These two issues combined ultimately leaves no substantive remedy to the person whose information gets leaked.[10] This bill has provided overarching powers to the legislature, which leaves risk for the misuse by the legislation.

Following similar analogy, it can be also argued that the institutions that are responsible for the collection and creation of the DNA profiles cannot be independent in the strict sense of the word and ultimately some kind of influence would be exercised by the authorities above them such as the government or the law enforcement agencies.

Conclusion And Suggestions
The discovery of DNA was considered to be one of the most important discoveries of all time having immeasurable implications on the society as a whole. DNA as discussed above has provided much needed efficiency and reliability in the domain of law such as solving familial disputes, DNA fingerprinting, etc.

However, the problems that India is facing with regards to the efficiency of the criminal justice system cannot be overlooked and a DNA database is one of the most sought after solutions to these problems. But even for the establishment of a DNA database, a battle with huge obstacles is inevitable. For the same, in the paper it is argued that the legislation should take important pointers from the successful examples of USA and UK while making relevant laws for the same.

The DNA technology bill can be seen as a good initiative by the legislation which tries to address several of the concerns but it is still not perfect and the same have been dealt in the previous paragraphs. One thing that could be learned from the example of USA and UK is that of equipping the ground level authorities with relevant knowledge and training will go a long way in achieving the objectives that are sought by the introduction of the bill.

Another thing to take note of is the independence of the institutions that are concerned with the collection and creation of DNA profiles and to prevent them from being misused by higher authorities. It is also highly desirable that the legislation should follow a bottom-to-top approach, as it is not likely that the authorities have the infrastructure and the resources to conduct a national DNA database process, rather what is possible is that the state governments should also be involved as much as possible and then later, they could be consolidated like CODIS as seen in America.

It is these small but significant steps that will lead the criminal system in India to fully reap the benefits of the DNA profiling process, which will ultimately lead to increase in the reliability and efficiency of the legal system in India. Also, it is up to both the legislation and the judiciary to clear this apparent conflict with the fundamental rights of the citizens.

End-Notes:

• DNA Based Technology (Use and Regulation) Bill, 2019, Bill No. 128 of 2019 (July 8, 2019).
• Lalji Singh, DNA Profiling and its applications, 60 Special Issue: Biotechnology In India, 580-585 (1991).
• The Wire Staff, DNA Technology Bill is Under Consideration, Data Banks to be set-up, The Wire, (Apr. 8, 2022), https://thewire.in/government/dna-technology-bill-is-under-consideration-data-banks-to-be-set-up-centre.
• LAW COMMISSION OF INDIA, Human DNA Profiling – A Draft bill for the use and regulation of DNA Based Technology (271, 2017).
• U.S. Department of Justice, The Application of DNA Technology in England and Wales, (203971; January, 2004), by Christopher H. Asplen.
• U.S. Congressional Research Service, The Use of DNA by the Criminal Justice System, and the Federal Role: Background, Current Law, and Grants, (R41800; April 18, 2022), by Emily J. Hanson.
• Maryland vs. King, 569 U.S. 435 (2013).
• Writ Petition (C) No. 607 of 2016 decided on February 06, 2017.
• Shravishtha Ajaykumar, DNA Technology Regulation Bill: Concerns on data privacy, dependence, and bias, Observer Research Foundation, (Dec. 20, 2022), https://www.orfonline.org/expert-speak/dna-technology-regulation-bill/.
• Khyati Jain, Challenges and Concerns in Admission of DNA Evidence in India: With Special Reference to DNA Technology (Use and Application) Regulation Bill, 2019, SCC OnLine, (Apr. 16, 2022), https://www.scconline.com/blog/post/2022/04/06/challenges-and-concerns-in-admission-of-dna-evidence-in-india/.

Also Read:

• DNA Legislations: Comparative Study Between India And Other Countries