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DNA TECHNOLOGY BILL: A REFORM TO AMELIORATE STANDARDS OR AN ENCUMBRANCE TO INDIVIDUAL RIGHTS

Introduction

DNA testing has played a prominent role in the crime-solving procedure and has been valuable in producing evidence in the courts over the past few decades. The DNA evidence plays a key role in criminal trials and it could be a determining factor in convicting as well as in exonerating the suspects of a crime. It also aids in the identification of missing persons by tracking their genes. To consolidate its mechanism for DNA testing, the Indian Government came up with the DNA Technology Bill 2019. The bill provides a mechanism for the collection and removal of samples and composition of the committee to oversee the functioning of institutions established within the bill. The following piece analyses whether the bill passes the validity of the Indian constitution, and also reflects upon the various International Laws in place that the bill is likely to concern.

Lacunae in the DNA Technology Bill

Despite being introduced with an objective to deliver speedy justice, certain loopholes in the bill are required to be sealed:

Privacy Issues- Privacy issues have been a glaring concern for this legislation. The bill lacks the proper mechanism to ensure disposal of those samples which are no longer in need. This will ultimately result in unnecessary data storage, which can be misused to extract private information and get innocent individuals involved in the trial, even without being suspects for the given crime.

Consent- For all offenses which are punishable with death, or imprisonment exceeding 7 years, there is no requirement for taking consent before collecting any bodily substance for DNA testing.

Right against self-incrimination- The use of this technology to gather evidence against an individual may violate his right against self-incrimination since it tacitly involves giving such evidence that may accuse him of a crime.

Inclusion of Civilian use- The bill not only governs DNA profiling for criminal issues but is also extended to cover civil matters (Section 34). The Bill lacks clarity on whether the DNA profiles are to be stored in DNA Banks even in case of civil matters. If yes, this may lead to misuse and unnecessary interference in the private lives of the people, since the information available will be more compendious than is required.

Removal of DNA profile- The removal of DNA profile from the database for those who are not linked to the crime scene requires them to file a written application. However, the same shall be done instantly by the authorities to prevent private information to be stored. This will also reduce the risk of misuse of this information in the future. (Section 31(3)).

The Test for Constitutionality and the Debatable Provisions of the Bill.

The importance of DNA Testing is unquestionable but privacy issues remain a concern for this prospective legislation. If one goes by the literal sense of section 9 of the Indian Evidence Act, 1872, it states that facts which are necessary to explain or introduce a fact in issue shall be considered as evidence. Section 45 and Section 51 aid the above by admitting the evidence of an expert as well as the ground on which the expert’s opinion is derived. This provides an inference that data available from DNA testing is an essential element under the above-mentioned provisions of the Indian Evidence Act. But the above cannot be read without considering the costs at which they come. The solution for the problem of abrogation of one zone of constitutional values cannot be the creation of another zone of abrogation of values. [i]

Moreover, it violates the essentials laid down in the K.S. Puttuswamy[ii] case. The Bill threatens the individual’s relationship with the rest of the society since the information may be used to create a genetic dragnet based on ethnicity or race, wherein people with no connection to crime scenes may be dragged into it. The overarching presence of the state is encroaching the person’s area of social existence which shall otherwise be free. The misuse of this data is may result in insurance and drug companies constantly intruding on one’s personal space for their profit.

The legal standing of the bill cannot be given a green flag without discussing the issue of self-incrimination. It is trite law that while accepting any procedure in pursuit of truth, the court should balance the interests, without transgressing the circumscribed limits. A number of decisions support the opinion that physical evidence shall not amount to a violation of Article 20(3). [iii], However, given that solving crimes is only one of the many uses of DNA profiling, its validity remains an intriguing concern.

Intersection With Human Rights and Public Interest

Whenever there is an issue that concerns the interest of society, the law has to pass the test of the “public interest”. The courts have iterated that there is a requirement of balancing the interests of an individual as well as the society and only upon due consideration, the court shall decide the requirement of a DNA test to solve a crime[iv] Courts have also suggested that the state should be able to prove that the method that has been implicated violates the personal law in the “narrowest” way possible which means that even if there is a requirement of encroaching upon the domain of “personal rights”, the same should be done with such precision, that it doesn’t violate the personal right in more than what is required to reach a judgement.

Furthermore, in the Puttuswamy Judgement, the court was of the view that if a law blatantly violates the basic rights of a human such as the fundamental right to privacy, the law cannot stand the test of “public interest” (para 78). Therefore, to pass the test of constitutionality, these two aspects of public interest and individual interest should work in synergy.

Any legislation that is drafted should be in accordance with the Human rights principles. The Bill proposes a peculiar procedure that invades the privacy of an individual in an arbitrary manner which violates Article 12 of the UN Declaration on Human Rights. Furthermore, the Bill raises concerns about the rights of human beings against maltreatment which is against the declaration of Helsinki, guidelines set out by the World Health Organization. The declaration clearly states that in any research involving medical aspects-privacy, consent, ethical considerations, confidentiality, etc. shall be given due regard. ICCPR, a celebrated multi-lateral treaty recognizes that unlawful interference with one’s privacy is completely unacceptable. In today’s world, technology has its roots so deep that even a single strand of hair can reveal the biological information of an individual. The use of this technology may not affect the person during the trial but might leave a lasting, undesirable impact on his life in the long run.

While we all celebrate the Right to know, Justice Kaul rightly stood for the recognition of the right to be forgotten. In Puttuswamy case, Justice Kaul held that, when one gathers knowledge about a person, one becomes capable of effecting representations, influence decision-making capabilities, and shape behaviour because the knowledge provides him with the power to influence (para 19, Kaul J.). Moreover, a piece of information, however truthful cannot be leaked in the public domain, leading us to the inference that even truthful information which may breach one’s privacy requires complete protection (para 57, Kaul J.).

Conclusion

One must understand that the Constitution needs to evolve with the changing times but the same cannot be done in a manner where the fundamental rights of the accused, under trials (as well as their family members), are affected. The evidentiary value of the DNA samples is debatable and in the end, one needs to decide how much faith one is ready to place on this technological advancement. The unprecedented growth of technology in the last few years does not implicate that we are ready to use it in the procedure of investigation without taking into account the impact of the same. Justice Chandrachud while delivering the Privacy judgment aptly stated that what has been provided by the constitution cannot be the subject to the vicissitudes of technology. In the same way, we cannot nullify the private rights (guaranteed by the constitution) to establish a technological aid in our crime-solving techniques.

Hence, before this bill is made the part of the criminal investigation system, the lacunae in security, privacy concerns, and the question of reliability should be considered and the law should be developed in such a way that it harmonizes the interest of an individual as well as society at large.

[i] Ram Jethmalani v. Union of India, (2011) 8 SCC 1. [ii] K.S. Puttuswamy (Retd.) v. Union of India, (2015) 8 SCC 735. [iii] State of Bombay v. Kathi Kalu Oghad & ors., AIR 1961 SC 1808. [iv] Bhabani Prasad Jena v. Convener Secretary, 2011 SCC OnLine Del 4076, ¶ 22.


Title Image: Holomatrix



This article has been written by Ashika Jain and Lakshay Garg who are students at GNLU,Gujarat