DNA Technology (Use and Application) Regulation Bill, 2019

The Lok Sabha recently passed the DNA Technology (Use and Application) Regulation Bill, 2019 on 8thJanuary 2019. This bill is now pending before the Rajya Sabha. The Act which is intended to be passed provides for the regulation of use and application of Deoxyribonucleic Acid (DNA) technology for the purposes of establishing the identity of certain categories of persons including the

  • victims
  • offenders
  • suspects
  • undertrials
  • missing persons
  • unknown deceased persons

and for matters connected therewith or incidental thereto.

What would be its effect, if it materialises into an act?

As per Section 1(2) It shall extend to the whole of India.

Key definitions:

“bodily substances” has been defined by Section 2(ii), as per which it means any biological material of, or from the body of, a person, whether living or dead, unidentified human remains, and includes intimate bodily substance and non-intimate bodily substance

“crime scene index” has been defined in Section 2(iv) according to which it means a list of entries of DNA profiles, in a DNA Data Bank derived from DNA samples found—

  • at any place where an offence was committed or is reasonably suspected of having been committed; or
  • on or within the body of the victim, or a person reasonably suspected of being a victim, of an offence; or
  • on anything worn or carried by the victim at the time when an offence was, or is reasonably suspected of having been, committed; or
  • on or within the body of a person, or on anything, or at any place, associated with the commission of an offence;

According to Section 2(xvi) “missing persons’ index” means a list of entries of DNA profiles, in a DNA Data Bank, derived from—

(a) unidentified human remains; or
(b) the personal effects of persons who are missing; or
(c) the bodily substances of relatives of the missing persons;

As per Section 2(xxv) “suspects’ index” or “undertrials’ index” means a list of entries of DNA profiles derived from DNA samples taken from the suspects or as the case may be, undertrials, in a DNA Data Bank

DNA Regulatory board

Section 3makes provisions for the establishment of a board called the DNA Regulatory Board, which shall carry out the purposes of this Act and shall be set up by the Central Government.The Board shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued. The head office of the Board shall be at such place in the National Capital Region, as the Central Government may, by notification, specify. However the Board may, with the approval of the Central Government, establish regional offices at such other places as it may deem necessary.

Functions of Board

As per Section 12,The Board shall in furtherance of the purposes of this Act, perform the following functions, namely:—

  • advice the Central Government and the State Governments on all issues relating to establishing of DNA laboratories and DNA Data Banks, including planning, organisational structure, size, number, location and laying down guidelines, standards and procedures for establishment and functioning of such laboratories and Data Banks including manpower, infrastructure and other related issues concerning monitoring of their performance and activities; upgradation of DNA laboratories;
    and making recommendations on funds required for such purposes;
  • grant accreditation to laboratories and to suspend or revoke such accreditation;
  • supervise DNA laboratories and DNA Data Banks, including their quality control;
  • develop the training modules and frame guidelines for training of manpower, including the police and investigating agencies dealing with DNA related matters;
  • regulate and audit DNA training programmes for DNA laboratories and DNA Data Banks;
  • identify scientific advances and recommend research and development activities in DNA testing and related issues, including intellectual property issues;
  • lay down procedures for communication of information relating to DNA profile in civil and criminal proceedings and for investigation of crimes by law enforcement and other investigating agencies;
  • recommend methods for optimum use of DNA techniques and technologies for administration of justice or for such other relevant purposes as may be specified by regulations;
  • adopt and disseminate best practices, concerning the collection and analysis of DNA sample to ensure quality and consistency in the use of DNA techniques, and on all ethical and human rights issues relating to DNA testing in consonance with international guidelines enumerated by the United Nations Organisation and its specialised agencies, inter alia, relating to—
  • the rights and privacy of citizens;
    • (ii) the issues concerning civil liberties;
    • (iii) issues having ethical and other social implications in adoption of DNA testing technology; and
    • (iv) professional ethics in DNA testing;
  • give advice on matters under this Act which may be referred to it by the Central Government or the State Government;
  • make recommendations to the Central Government for the application of privacy protection in relation to the access to, or the use of, DNA samples and their analyses, and ensure—
    • implementation and sufficiency of such protection;
    • appropriate use and dissemination of DNA information;
    • accuracy, security and confidentiality of DNA information;
    • timely removal and destruction of obsolete, expunged or inaccurate DNA information; and
    • such other steps as may be required to protect privacy;
  • facilitate exchange of ideas and information on DNA technology;
  • create awareness among public and other stakeholders, including police officers, prosecutors and judicial officers on the use and application of DNA technology;
  • assist in such manner as may be prescribed, in criminal investigation between various investigation agencies within the country and with any foreign State, international organisation or institution in dealing with DNA testing;
  • advice the Central Government on any modifications required to be made in respect of any matter under the Schedule;
  • frame guidelines for storage and destruction of bodily substances including known sample;
  • perform such other functions as may be prescribed.

Restrictions

Section 21 provides thatno bodily substances shall be taken from a person who is arrested for an offence (other than an offence punishable with death or imprisonment for a term exceeding seven years) unless the consent is given in writing for the taking of the bodily substances. If the consent required for taking of bodily substances from a person is refused or cannot be obtained, the person investigating the case may make an application to the Magistrate having jurisdiction for obtaining bodily substances from the arrested person. The Magistrate may, if he is satisfied that there is reasonable cause to believe that the bodily substances may confirm or disprove whether the person so arrested was involved in committing the offence, order for taking of bodily substances from such person.

As per Section 22, If the person giving voluntary consent is below the age of eighteen years and the consent of the parent or guardian of such person is refused or cannot be obtained, the person investigating the case may make an application to the Magistrate having jurisdiction, for obtaining such bodily substances and the Magistrate, if he is satisfied that there is reasonable cause for taking the bodily substances from such person, order for taking of bodily substances from that person. Subject to this any person who –

  • was present at the scene of a crime when it was committed; or
  • is being questioned in connection with the investigation of a crime; or
  • intends to find the whereabouts of his missing or lost relative, in disaster or otherwise,

may voluntarily consent in writing to bodily substances being taken from him for DNA testing.

Collection of Samples

Section 23 provides for the purposes of this Act, collection of samples for DNA testing from the following sources, namely:—

  • bodily substances;
  • scene of occurrence, or scene of crime;
  • clothing and other objects; or
  • such other sources as may be specified by regulations.

Any intimate bodily substance [1] from living persons shall be collected, and intimate forensic procedures [2] shall be performed, by a medical practitioner. Any non-intimate bodily substance [3] shall be collected and non-intimate forensic procedure [4] shall be performed by the technical staff trained for the collection of samples for DNA testing, under the supervision of a medical practitioner or a scientist having expertise in molecular biology or such other person as may be specified by regulations. However, before collecting bodily substances for DNA testing of a victim or a person reasonably suspected of being a victim who is alive, or a relative of a missing person, or a minor or a disabled person, written consent of such victim or such relative or the parent or guardian of such minor or disabled person shall be obtained and, in case of refusal, the person investigating the case may make an application to the Magistrate having jurisdiction, for obtaining such bodily substances and the Magistrate, if he is satisfied that there is reasonable cause for taking the bodily substances from such person, order for taking of bodily substances from that person.

As per Section 24,If the trial court is satisfied with the plea of the accused person that the bodily  substances taken from such person or collected from the place of occurrence of crime had been contaminated, the court may direct the taking of fresh bodily substances for re-examination.

National DNA Data Bank

Section 25 provides thatthe Central Government shall, by notification, establish a National DNA Data Bank and such number of Regional DNA Data Banks for every State, or two or more States, as it may deem necessary. A Regional DNA Data Bank shall share all DNA data stored and maintained by it with the National DNA Data Bank. The National DNA Data Bank shall receive DNA data from Regional DNA Data Banks and shall store the DNA profiles received from the DNA laboratories in such format as may be specified by regulations.

Section 26 provides that every DNA Data Bank shall maintain the following indices for various categories of data, namely:—

(a) a crime scene index;
(b) a suspects’ index or undertrials’ index;
(c) an offenders’ index;
(d) a missing persons’ index; and
(e) unknown deceased persons’ index. 40

The indices maintained shall include information of data based on DNA testing and records relating thereto, prepared by a DNA laboratory. In addition to the indices referred to herein above, every DNA Data Bank shall maintain, in relation to each DNA profile, the following information, namely:—

  • in case of a profile in the suspects’ index or undertrials’ index or offenders’ index, the identity of the person from whose bodily substances the profile was derived; and
  • in case of a profile, other than a profile in the suspects’ index or undertrials’ index or offenders’ index, the case reference number of the investigation associated with the bodily substances from which the profile was derived.

As per Section 30,On receipt of a DNA profile from the Government of a foreign State or an international organisation or any institution of such Government or international organisation, the National DNA Data Bank may compare such DNA profile with the DNA profiles contained in the crime scene index, the offenders’ index, the suspects’ index, the undertrials’ index, the missing persons’ index and the unknown deceased persons’ index, to determine whether there is a match between the profiles and the National DNA Data Bank Director may with the prior approval of the Central Government, communicate any of the following information to such Government or organisation or institution, as the case may be, through any agency authorised by notification by the Central Government, namely:—

  • that there is no match between the profiles;
  • if there is a match between the profiles, any information relating to such matching DNA profile; or
  • if, in the opinion of the National DNA Data Bank Director, the DNA profile is similar to the one contained in the DNA Data Bank, information relating to such similar DNA profile.

After receiving the similar DNA profile, if such foreign Government or organisation or institution informs that the possibility of a match between the similar DNA profile with the DNA profile provided by it has not been excluded, any further information in relation to such similar DNA profile may also be furnished in the same manner as specified hereinabove.

The Central Government may, in consultation with the Board,—

  • determine the nature and extent of sharing DNA profiles in respect of offenders, suspects, undertrials, missing persons and unknown deceased persons with the Government of a foreign State or an international organisation or an institution established by that Government or organisation, as the case may be;
  • seek similar information from such foreign State, organisation or institutions, and the provisions explained above shall, mutatis mutandis, apply.

Section 31 provides that the information contained in the crime scene index shall be retained. The Director of the National DNA Data Bank shall remove from the DNA Data Bank the DNA profile,

  • of a suspect, after the filing of the police report under the statutory provisions or as per the order of the court;
  • of an undertrial, as per the order of the court, under intimation to him, in such manner as may be specified by regulations.

The National DNA Data Bank shall, on receiving a written request of a person who is neither an offender nor a suspect or an undertrial, but whose DNA profile is entered in the crime scene index or missing persons’ index of the DNA Data Bank, for removal of his DNA profile therefrom, remove the DNA profile of such person from DNA Data Bank under intimation to the person concerned, in such manner as may be specified by regulations. However where such DNA profile is of a minor or a disabled person, removal shall 40 be made on receiving written request from a parent or the guardian of such minor or disabled person. Subject to this section, the criteria for entry, retention and removal of any DNA profile in, or from, the DNA Data Bank and DNA laboratories shall be such as may be specified by regulations.

Security and confidentiality of information

According to Section 32,subject to the provisions of this Act, the Board shall ensure that the information relating to DNA profiles, DNA samples and any records thereof, forwarded to, or in custody of, the National DNA Data Bank or the Regional DNA Data Bank or a DNA laboratory or any other person or authority under this Act, are secured and kept confidential. The Board shall take all necessary measures to ensure that the information is protected against access, use or disclosure not permitted under this Act or regulations made thereunder, and against accidental or intentional destruction, loss or damage.

Without prejudice to what is stated hereinabove in this section, the Board shall—

  • adopt and implement appropriate technical and organisational security measures;
  • ensure that any agency appointed or engaged for performing any functions under this Act have in place appropriate technical and organisational security measures for the information; and
  • ensure that the agreements or arrangements entered into with any investigation agency, international organisation or institution, impose obligations equivalent to those imposed on the Board under this Act, and require such agency, organisation, or institution to act only on instructions from the Board.

Notwithstanding anything in any other law for the time being in force, and save as otherwise provided in this Act, the Board or any of its officers or other employee, the Director of the National or Regional DNA Data Bank or any of its officers or other employees, or the in-charge and other staff of DNA laboratory or any officer or employee of the agency engaged under this Act shall not, whether during his service or thereafter, reveal any information relating to DNA profiles, DNA samples and any records thereof to anyone.

Use of DNA profiles, DNA samples and records, etc., for facilitating identification of persons

As per Section 33,All DNA data, including DNA profiles, DNA samples and records thereof, contained in any DNA laboratory and DNA Data Bank shall be used only for the purposes of facilitating identification of the person and not for any other purpose.

Access to information

Section 34 provides thatany information relating to DNA profiles, DNA samples and records thereof, maintained in a DNA Data Bank shall be made available for the following purposes, namely:—

  • facilitating the identification of persons in criminal cases by the law enforcement and investigating agencies;
  • judicial proceedings, in accordance with the rules of admissibility of evidence;
  • facilitating prosecution and adjudication of criminal cases;
  • taking defence by an accused in the criminal case in which he is charged;
  • investigation relating to civil disputes or other civil matters or offences or cases specified in the Schedule, by making such information available to the concerned parties with the approval of the court, or to the concerned authority; or
  • such other purposes as may be specified by regulations.

Section 35 provides thataccess to such information contained in the National DNA Data Bank and the Regional DNA Data Banks may be made available by the Director if he considers appropriate,—

  • to a person or class of persons, for the sole purpose of proper operation and maintenance of the DNA Data Bank; and
  • to the personnel of any DNA laboratory for the sole purpose of training, in accordance with such terms and conditions as may be specified by regulations.

Section 42 provides thatthe Board shall prepare in each financial year, in such form and at such time as may be prescribed, its annual reportgiving a full account of its activities during the previous financial year and submit a copy thereof to the Central Government.

Offences and Penalties

Section 45 states that whoever, by virtue of his employment or official position or otherwise,

  • has in his possession, or
  • having access to

individually identifiable DNA information kept in the DNA laboratory or DNA Data Bank, wilfully discloses it in any manner to any person or agency not entitled to receive it under this Act, or under any other law for the time being in force, shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to one lakh rupees.

As per Section 46, whoever, without authorisation, wilfully obtains individually identifiable DNA information from the DNA laboratory or DNA Data Bank, shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to one lakh rupees.

Section 47 provides that whoever, without authorisation, wilfully uses any DNA sample or result of any DNA analysis, shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to one lakh rupees.

Section 48 states that whoever, accesses information stored in the DNA Data Bank, otherwise than in accordance with the provisions of this Act, shall be punishable with imprisonment for a term which may extend to two years and also with fine which may extend to fifty thousand rupees.

According to Section 49 whoever, knowingly and intentionally, destroys, alters, contaminates or tampers with biological evidence which is required to be preserved under any law for the time being in force, with the intention to prevent that evidence from being subjected to DNA testing or to prevent the production or use of that evidence in a judicial proceeding, shall be punishable with imprisonment for a term which may extend to five years and also with fine which may extend to two lakh rupees.

According to Section 50, whoever, contravenes any of the provisions of this  Act or the rules and regulations made thereunder for which no penalty is provided in this Act, shall be punishable with imprisonment for a term which may extend to two years and also with fine which may extend to fifty thousand rupees.

As per Section 51, where an offence under this Act, has been committed by a company [5] or institution, every person who at the time the offence was committed was in charge of, and was responsible to, the company or institution for the conduct of the business of the company or institution, as well as the company or institution, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. However this provision shall not render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

Furthermore, where an offence under this Act has been committed by a company or institution and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director [6], manager, secretary or other officer of the company or institution, such director, manager, secretary or other officer shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

List of matters for DNA testing

IPC, 1860: Offences under Indian Penal Code, 1860 where DNA testing is useful for investigation of offences.

Offences under special laws:

  • The Immoral Traffic (Prevention) Act, 1956
  • The Medical Termination of Pregnancy Act, 1971
  • The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
  • The Protection of Women from Domestic Violence Act, 2005
  • The Protection of Civil Rights Act, 1955
  • The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
  • The Motor Vehicles Act, 1988

Civil disputes and other civil matters:

  • Parental dispute (maternity or paternity)
  • Issues relating to pedigree
  • Issues relating to assisted reproductive technologies (surrogacy, in-vitro fertilisation and intrauterine implantation or such other technologies)
  • Issues relating to transplantation of human organs (donor and recipient) under the Transplantation of Human Organs Act, 1994
  • Issues relating to immigration or emigration
  • Issues relating to establishment of individual identity

Other cases:

  • Medical negligence
  • Unidentified human remains
  • Identification of abandoned or disputed children and related issues

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[1] “intimate bodily substance” means a sample of blood, semen or any other tissue, fluid, urine or pubic hair, or a swab taken from a person’s body orifice other than mouth; or skin or tissue from an internal organ or body part, taken from or of a person, living or dead;

[2] “intimate forensic procedure” means any of the following forensic procedures conducted on a living person, namely:—

  • external examination of the genital or anal area, the buttocks and breasts in the case of a female;
  • taking of a sample of blood;
  • taking of a sample of pubic hair;
  • taking of a sample by swab or washing from the external genital or anal area, the buttocks and breasts in the case of a female;
  • taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks and breasts in the case of a female;
  • taking of a photograph or video recording of, or an impression or cast of a wound from, the genital or anal area, buttocks and breasts in the case of a female;

[3] “non-intimate bodily substance” means any of the following taken from or of a person, living or dead, namely:—

  • handprint, fingerprint, footprint or toeprint;
  • a sample of hair other than pubic hair;
  • a sample taken from a nail or under a nail;
  • swab taken from any part of a person’s body including mouth, but not any other body orifice;
  • saliva; or

[4] “non-intimate forensic procedure” means any of the following forensic procedures conducted on a living individual, namely:—

  • examination of a part of the body other than the genital or anal area, thebuttocks and breasts in the case of a female, that requires touching of the body or removal of clothing;
  • taking of a sample of hair other than pubic hair;
  • taking of a sample from a nail or under a nail;
  • taking of a buccal swab with consent;
  • taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks and breasts in the case of a female;
  • scraping or lifting by tape from any external part of the body other than the genital or anal area, the buttocks and breasts in the case of a female;
  • taking of a handprint, fingerprint, footprint or toeprint; or
  • taking of a photograph or video recording of, or an impression or cast of a wound from, a part of the body other than the genital or anal area, the buttocks and breasts in the case of a female.

[5] “company” means any body-corporate and includes a firm or other association of individuals; and

[6] “director”, in relation to a firm, means a partner in the firm.

Copy of bill : DNA Technology Bill, 2018 as passed by Lok Sabha

-Tushar Kaushik

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