Right to privacy is a basic human fundamental right that is recognised by various international treaties like Universal declaration of human rights (UDHR) in 1948 through its Article 12(4).[1] History of right to privacy in India can be traced back to the case of Kharak Singh v State of Uttar Pradesh, where the Right to privacy was derived from "Protection of life and personal liberty" mentioned in Article 21 of The Constitution of India.[2] Right to privacy refers to an individual's right for his physical integrity, personal autonomy and free speech and is part of Article 21 of The Constitution of India.[3]

Instance & Issue
The DNA Technology ( Use and Application) Regulation Bill, 2019 was introduced in the Lok Sabha on July 8, 2019 with the aim of regulating the use and application of DNA technology for the purpose of criminal justice system.[4] It is pertinent to know that the same bill was introduced in Lok Sabha in 2018 as well but it lapsed. The bill never became a law till now because of certain issues that were discovered by Jairam Ramesh who was heading the parliamentary standing committee on science and technology.

Although the primary aim of the DNA Technology bill was to help the courts as well as law enforcing agency in management and storage of an victims, offenders, suspects and undertrials DNA data through establishment of an DNA regulatory body but the same could have led to compromising of an individual's right to privacy and other private sensitive data.

One of the major concern of the DNA Technology (Use and Application) Regulation Bill was related to an Individual's right to privacy. The contention put forth by various legal scholars pointed that if the bill is passed in its current form, an individual's right to privacy would be put in a sensitive position and at the risk of getting compromised.

In the case of KS Puttuswamy v Union of India, privacy was declared as an fundamental right under the Article 21 of the Constitution of India.[5] Another issues with the bill is that it might lead to biological surveillance as in a lot of instances the DNA footprints at the crime scene might not be of the person related

to the incident and might lead to storage of DNA data of the person who is nowhere related to the crime or the incident. The above concern raised by the author can be considered as an attempt by the state to impose restriction on the fundamental right of right to privacy. Although the bill says that no substance can be taken from a person's body without his consent but there is an exception to same protection.

The exception gives power to take bodily substance without an Individual's consent whose provision says that when a person is arrested for an offence which is punishable with death, his bodily substance can be taken without his consent. The major loophole in the above protection is that in case of person who is accused of an offence which is punishable for less than 7 years and if he does not consent for giving his bodily substance, the authority can bypass his consent by taking permission for the same from the magistrate.[6]

Hence the above discussed loophole is an prima facie threat to an individual's right to privacy and their bodily autonomy as the person is not having the requisite power and authority to provide consent for giving away his private information in the form of DNA.

As per various human rights groups and technical experts, the provision mentioned in the bill with respect to storage of an certain type of peoples DNA data may lead to target and attack on minorities and marginalised groups incase their DNA information or private information is misused or breached.

Possible Solution
The DNA Technology (Use and Application) Regulation bill specifies penalties for certain offences like disclosure of DNA information and usage of DNA sample without authorisation in the form of punishment amounting to imprisonment for a period up to three years or up to fine of one lakh rupees.

The above-mentioned punishment with respect to breach of an individual's private information might not be enough to protect private information of an individual, rather there is need for a stricter form of punishment along with amendments and changes in the original bill for the reason of granting more assurance and protection to an individual's right to privacy.

The DNA Technology must be used in a such a way that it does not infringe an individual's fundamental and constitutional right more importantly the right to privacy, rather it's usage should be advocated in the field of criminal justice system with efficient and proper care along with more stricter forms of punishment in case of breach of an individual's DNA data.

The easiest way of safeguarding an individual's right to privacy and giving him assurance that his personal data is protected in the DNA data bank is by implementing a more comprehensive and advanced Personal Data Protection Act, a more advanced version of the recently withdrawn Personal Data Protection bill which was introduced in the year 2019.[7]

There is need for more advanced infrastructure for better and effective usage of the DNA technology for the process of criminal justice system which can be achieved by adding more labs as the current number of labs is not at all enough for the same. Various important players who are part of the justice delivery system including police, magistrates, lawyers along with lab members need to be educated and trained for a more effective and safe usage of the DNA technology so that it does not lead to violation of an individual's right to privacy.

Conclusion
Although the concept of having a DNA bill is not a bad one but the same needs to be addressed with proper care and caution along with some major changes that are mentioned above. For the effective implementation of the bill, it is important that it works hand in hand with the Personal data protection bill so that the fundamental right of privacy is protected along with the aim of effective criminal justice system.

End-Notes:

1. Universal Declaration of Human Rights, art 12(4).
2. Kharak Singh v State of Uttar Pradesh, AIR 1963 SC 1295.
3. The Constitution of India, art 21.
4. The DNA Technology ( Use and Application) Regulation Bill (LS) 128 of 2019.
5. KS Puttuswamy v Union of India, (2017) 10 SCC 1.
6. DNA Bill 2019:Privacy issues must be addressed The Hindu (16 May 2021)
   accessed 4 September 2022.
7. The Personal Data Protection Bill (LS) 373 of 2019.

Also Read:

• Human DNA Profiling and Right to Privacy