Ishita Soni*
Introduction
An individual’s DNA (deoxyribonucleic acid) can be collected from human cells emanating through bodily substances such as saliva, blood, nail clippings, and hair strands. It furnishes details about the person’s unique genetic makeup. Since the advent of the DNA technology, these details have been used for a catena of reasons, ranging from tracing the familial linkages to detecting the suspects of a crime. As per Locard’s exchange principle, every criminal leaves behind a trace of its DNA upon coming in contact with the crime scene. This theory forms the basis for profiling human DNA under USA’s DNA Identification Act, 1993, UK’s Criminal Justice and Public Order Act, 1994, and Canada’s DNA Identification Act, 1998.
To follow suit, the Indian Parliament recently introduced the DNA Technology (Use and Application) Regulation Bill, 2019 (“the Bill”). It codifies the norms and practices to collect, use, and apply the DNA technology in the Indian Criminal Justice System (“CJS”). Currently, Indian state authorities are statutorily permitted to collect DNA samples in cases of rape and drunken driving. The Bill seeks to expand its usage for identifying persons involved in all categories of crimes by standardizing and regulating the process of genetic profiling. In advance of this, the Bill establishes a DNA Regulatory Board (“DRB”) and under its supervision, national and regional DNA Data Banks (“DDB”).
Human DNA surely renders overarching medical and forensic benefits in both criminal and civil investigations; however, its usage merits close legislative scrutiny owing to its delicate, hyper-technical, and esoteric nature. Thus, to plug the gaps in its current examinations which critique the Bill from a socio-legal and political prism, I indulge in a legislative analysis of the Bill with reference to the global DNA policies and Indian constitutional and medical jurisprudence. I present six principle defects in the proposed DNA collection process to underscore the Bill’s latent lacunae that would inevitably impede its unhindered practical and lawful implementation. In the process, without questioning the reliability of DNA technology or venturing into a normative inquiry for the Bill’s successful execution, I argue that the Bill necessitates reexamination before it is enforced in India.
Impediments to Legal and Practical Implementation of the Bill
1. DNA collection is permissible from persons unrelated to the crime
The Bill outlines six categories of persons from whom DNA could be collected: (i) victims, (ii) offenders, (iii) suspects, (iv) undertrials, (v) missing persons, and (vi) unknown deceased persons [see, Preamble]. To record their DNA profiles, Sec. 2(1) of the Bill establishes multiple indices for each category of persons.
Alongside the person-specific categorization, the Bill creates a locale-specific category by allowing DNA profiles to be collected from the spot of crime. For this, the Bill proposes to formulate a ‘crime scene index’ wherein DNA samples found “on or within the body of a person […] associated with the commission of an offence” would be recorded [see, Sec. 2(1)(iv)(d)]. This provision fails to mention whether such a ‘person’ could be living or dead and whether in case of the former, any form of active consent is required.
In addition, the Bill does not prescribe any yardstick to discern who is deemed to be ‘associated’ with the crime. There is no definition to enunciate the precise category of persons whose DNA may be collected under this classification. Such a broad and loosely termed epithet envelopes:
a. People who are neither criminals nor victims but came in contact with the ‘crime scene’ prior to the commission of crime or between the commission of crime and its investigation.
b. Bystanders and passersby’s who witness the commission of the crime without actually participating in it.
If enacted and allowed to stand as it is, authorities would be able to collect and preserve the DNA of innocent people without their knowledge. This runs the risk of discouraging the Good Samaritans from offering their assistance during emergencies to help the victims of crimes. The incessant fear of being forced to part with their DNA by virtue of being ‘associated’ with the crime will deter their valuable participation and perpetuate state-sanctioned biological surveillance over sensitive information. This would also, in turn, contradict the rule that calls for an examination of the extent to which a person participated in a crime to determine to need for its DNA test.
The only relief available with such ‘associated persons’ would be to file a written request with the National DDB to remove their DNA profile from the index [see, Sec. 31(3)]. However, once collected, their biological specimen would continue to remain with the authorities in the absence of any formal plea. Therefore, the Parliament must formulate legislative protections akin to UK’s Protection of Freedoms Act, 2012 which mandates the removal of one’s DNA profile from the database after the “conclusion of the investigation of the offence”.
Besides, given that the police can collect DNA from ‘within’ a person’s body, a higher threshold of seeking one’s consent for physical intervention must be incorporated. To put this in perspective, UK’s Human Tissues Act, 2004 criminalizes the act analying a person’s DNA without seeking its appropriate consent as ‘DNA Theft’.
British law also distinguishes between ‘intimate’ and ‘non-intimate’ body samples; the former can be collected upon seeking the persons’ consent, and the latter can be gathered after informing the persons of its reasons and recording the same in writing. Although the Bill also recognizes this distinction under Sec. 23, it does not mandate the authorities to apprise the persons or record the reasons behind collecting their DNA without seeking consent. This irregularity must be rectified so that individuals who are unrelated to a crime remain outside the radar of the Bill.
2. Consent for DNA collection need not be taken from a category of suspects
Sec. 21 of the Bill mandates the investigating authorities to seek prior consent of the accused persons before extracting their DNA. However, the same precondition is absent for a person who is arrested for an offence punishable with death or imprisonment of term exceeding seven years [see, Explanation, Sec. 21(1)].
It is well settled that for such a legislative distinction to be in compliance with Article 14 of the Indian Constitution, – which cements the rule of equality before law – the classification must have an intelligible differentia and a reasonable nexus with the object sought to be achieved by the statue. To this end, the object of the Bill is to ensure the “appropriate use of DNA technology by the courts of law and other agencies” [see, Statement of Object and Reasons]. This ‘appropriate use’ by the CJS can only be assured when identical procedural rules apply to every person whose DNA is being tested under the Bill.
The lack of consent from those accused of committing a serious offence does not serve the objective of the Bill due to three reasons:
a. It countermands the legal canon of presumption of innocence of the accused.
b. It violates the person’s right against self-incrimination enshrined under Article 20(3) of the Constitution.
c. It breaches the right to privacy and human dignity by recording the suspects and undertrials DNA profiles in the DDB.
A mere allegation preceding a formal chargesheet at the stage of arrest does not go to prove a person’s complicity or involvement in a crime. To illustrate, data released by the Law Commission of India reveals that a total of 29,124 arrested persons were dropped/released in 1998 without filing a chargesheet in Uttar Pradesh. Hence, persons arrested for both serious and minor offences should be treated alike.
In October 2021, in Ashok Kumar v. Raj Gupta, the Supreme Court gave precedence to the privacy of an individual over the production of additional evidence in the form of his DNA. As a result, courts were directed to refrain from directing the commission of DNA tests whenever other forms of evidence or less intrusive and practical ways of evidence collection are available. In fact, the Court relied on the seminal K.S. Puttaswamy case to hold that the tests of proportionality and legitimate aim must be utilised to answer the following questions before directing a DNA test [see, Para. 13]:
1. Is the aim that is being pursued through the DNA test arbitrary or discriminatory?
2. Can the DNA test justify the encroachment upon privacy and personal autonomy of the person?
3. Does the DNA test have an adverse impact on the person?
Until these issues are taken into consideration, the Bill should not empower the authorities to extract an accused person’s DNA without seeking its consent.
Further, if the accused persons refuse to submit their DNA, the Bill authorizes the Magistrate to order the withdrawal of their DNA if the same evinces their involvement in committing the offence [see, Sec. 21(3)]. To determine the kind of situations where such ‘involvement’ can be prima facie established, specific guidelines or supporting illustrations must be adumbrated in the provision to lay uniform standards for judicial consideration.
This is all the more crucial as the Supreme Court has observed that DNA test cannot be directed as a matter of routine but only in the most deserving cases after employing the eminent need test. In the same vein, the Court has implicitly used, what may be called the but for test to direct DNA removal only in cases where but for the sample, it would be impossible to establish an assertion. Similar standards for DNA collection must be delineated in the Bill for authorities’ consideration.
The Bill should also mandate the Magistrate to hear the person it believes to be ‘involved’ and thereafter issue a reasoned order. Ultimately, if people refuse to submit to a medical examination for DNA removal, the courts must draw an adverse inference against them instead of directing them to undergo the DNA test. This rule is of immense importance since Sec. 31(1) of the Bill only prescribes two methods for removing the DNA profile of suspects and undertrials from the DDB: (i) Police Report, and (ii) Court Order.
Hence, if a court fails to direct the removal of DNA while acquitting an accused, the concerned person’s DNA would remain in the custody of the national and regional DDBs unless they take suo moto cognizance of the same. In this regard, the ECHR has unequivocally observed that indiscriminate retention of biometric data of innocent persons impinges the right to privacy embodied under Article 8 of the European Convention on Human Rights, 1950. A priori, if the Bill’s objective is to apprehend repeat offenders, the DDB should only preserve the DNA profiles of the convicted persons.
3. Excessive legislative powers have been delegated to the DNA Regulatory Board
The doctrine of limited delegated legislation was propounded in the landmark case of In Re Delhi Laws Act. Per this, the judiciary can interfere if a sub-delegation is of such an indefinite character that it amounts to partial or complete abdication of legislative powers upon a subordinate body. The Court has observed that such ‘essential legislative functions’ that include choosing and enacting a policy beyond mere administrative details cannot be delegated. Put simply, only clerical, ministerial, and ancillary tasks, or formation of details with the procedure for implementation can be delegated. Further, as held in Rojer Mathew v. South Indian Bank Ltd., the legislature must prescribe a standard or rule for guiding the administrative body without vesting it with uncontrolled discretion. It must clarify sufficient guidelines, safeguards, and checks to limit the scope of the delegated powers.
The Bill, however, cedes substantial powers to the DRB under Sec. 59(1) to frame ‘regulations’ for various purposes, including advising the government, supervising and regulating the accreditation of DNA laboratories, carrying out research and training therein, optimally using the DNA techniques, and prescribing the functions of DDB’s Director. The DRB is also allowed to outline policies for the complete functioning of the DNA laboratories with respect to its staff, security, protocols, infrastructure, documentation, equipment, audits, inter alia [see, Sec. 20(1)]. It is also allowed to sub-delegate its non-legislative powers to the Chairperson or ‘any other Member’ of the DRB [see, Sec. 10(1)].
In addition, the Bill permits the DRB to “make recommendations […] for the application of privacy protection” vis-à-vis the DNA samples [see, Sec. 12(k)] and specify any ‘other’ criteria and purposes for entry, retention, and expunction of the DNA profile in or from the DDB and DNA Laboratories [see, Sec. 31(4)]. As a consequence, DRB would have complete authority to decide the means, methods, and triggering mechanisms for DNA collection, transfer, storage, and return.
The unfettered and sweeping powers of the DRB are also reflected in Sections 23(d) and 34(f) of the Bill. These provisions respectively permit the DRB to stipulate ‘such other purposes’ to grant access to the DNA records and ‘such other sources’ from where DNA samples may be collected. Before this sub-clause, the provisions seriatim specify the specific purposes and sources for DNA collection. Despite incorporating the comprehensive list, the provisions extend the DRB’s authority to prescribe any other additional grounds for permitting DNA data transmission without delineating any guiding principles for its consideration. This confers unrestrained law-making powers to a non-legislative, administrative body.
In a similar case earlier, when the collector was given the discretion to authorise ‘any person’ to collect documents, the Act was deemed to be unconstitutional as it did not frame any guidelines to determine who such persons could be. Notably, the Parliamentary Standing Committee on Science & Technology had also suggested the deletion of these clauses from the Bill in February 2021 as they override ‘all the legislative limitations and protections’.
To top it off, the Bill permits the DRB to frame regulations on “any other matter which is to be, or may be, or in respect of which provisions is to be, or may be, made by regulations for carrying out the provisions of the Act” [see, Sec. 59(2)]. Evidently, the provision incorporates vague and abstruse language that expands the remit of DRB qua all prospective amendments in the Bill.
Interestingly, the Bill annexes a ‘Memorandum regarding delegated legislation’ that seeks to justify the delegation of such legislative power by specifying the impracticability to provide for “matters of procedure and administrative detail”. However, as demonstrated above, the vast contours of such ‘detail(s)’ are beyond the permissible limits of delegated legislation, for they engulf essential legislative functions.
4. DNA profiling is permitted in civil disputes without an index or oversight mechanism
As stated above, the Bill establishes six indices for suspects, undertrials, crime scene, offenders, missing persons, and unknown deceased to record their DNA profiles separately [see, Sec. 26(1)]. A plain reading of these indices depicts that the Bill encourages DNA collection in criminal investigations.
Likewise, to expand its application over civil cases, the Bill allows the DRB to establish procedures for recording information in civil proceedings [see, Sec. 12(g)]. Concomitantly, the DDB is permitted to grant access to the DNA samples for any “investigation relating to civil disputes or other civil matters” [see, Sec. 34(e)]. These disputes are elaborately listed under Part C of the Bill’s Schedule, which include within their fold, parental, reproductive, immigration, and organ transplantation disputes, among others.
However, unlike the indices postulated for recording DNA in criminal disputes, the Bill does not establish any national or regional index to store the DNA information collected during civil disputes. In the absence thereof, DNA laboratories would not be legally obligated to maintain a formal, systematic record of the DNA samples they examine in civil cases.
As a result, if a case entails DNA collection from individuals who do not fall within the six categories – for instance, in a matrimonial dispute concerning an offspring’s parentage – the laboratory would not be subjected to the same standards of scrutiny, as it would be in case of a criminal dispute. This pragmatic anomaly can be cured in two ways:
a. Creating an independent index for documentation of DNA in civil disputes to ensure the data is exposed to the identical thresholds of administrative, judicial, and executive oversight in accordance with the Bill.
b. Removing the provisions for DNA profiling in civil disputes altogether to render the Bill exclusively CJS-centric and confine its supervision over data amassed during penal disputes.
For this, recourse may be had to the international policies of USA and UK, wherein information emerging from criminal investigations are separately stored in the Combined DNA Index System (CODIS) and the National Criminal Intelligence DNA Database (NDNAD), respectively.
On one hand, maintenance of civil dispute indices would leave the door ajar for the government to hold permanent control over citizens’ critical personal data. And on the other hand, non-collection of DNA in civil matters would leave the entire gamut of non-criminal disputes outside the purview of DNA utilization for detection of miscreants through conclusive scientific findings. Whatever the case may be, the Parliament ought to take certain stand because an attempt to regulate DNA profiling in civil disputes without adequate structures in place would only make the exercise more questionable, unreliable, and specious.
5. No information is furnished regarding the DNA’s chain of custody
In State of Rajasthan v. Daulat Ram, the Supreme Court had defined the ‘chain of custody’ as the complete record of biological evidence from the position, time, and place of its extraction, and up to its presentation in the Court at every stage.
To this effect, the Bill formulates the procedure that investigating officers and DNA laboratories need to follow after profiling and depositing a DNA sample with the DDB. For instance, DNA laboratories are required to return the DNA samples to the investigators after deriving the DNA profile and recording them with the DDBs [see, Sec. 20(2)(a)]. In the entire procedure, however, none of the parties are obligated to intimate the persons or their guardians about the whereabouts of the sample.
As a result, the authorities would have the liberty to transfer or relocate a DNA sample without informing the concerned person about its location or custodian at any given point of time. The individuals would resultantly have no knowledge about the usage of their bodily tissues after depositing them with the authorities. This would hamper their right to seek a return of their DNA samples, thereby infringing their rights to know and individual autonomy.
6. Adjudicative powers have been granted to executive and administrative bodies
Under the Bill, in case a dispute arises between the Central Government and the DRB, the Central Government would have the final discretion and decision making power to decide whether a question is a matter of policy [see, Sec. 55(2)]. Simultaneously, the Bill withdraws the courts’ jurisdiction to entertain any suit in a matter that can be determined by the DRB. [see, Sec. 57].
The combined effect of these provisions is that the government alone can determine whether any part of the ‘regulation’ framed by the DRB encapsulates a legislative policy. The government would thus have the final authority to question, and then itself determine, the legality, validity, and permissibility of a DRB-made regulation based on its own subjective satisfaction. This practice would counteract a fundamental principle of natural justice, which envisages that ‘no one should be a judge in their own cause.’
To assuage concerns regarding these provisions, the Bill should expressly make the decisions rendered by the Central Government and the DRB subject to appeal before the higher courts in India. Neither body should be permitted to exercise exclusive adjudicative authority and their role should be limited to the performance of executive and administrative functions.
Conclusion and the Way Forward
Owing to the legal and pragmatic issues mired into the Bill, in its current state and form, it warrants immediate re-deliberation and overhaul by the Parliament. In a bid to modernize the CJS, the Parliament has made a botched attempt to emulate other jurisdictions’ best practices in genetic profiling and regulation. Hence, the legislature must insert suitable safeguards in the Bill to regulate the scientific, social, and statutory aspects of DNA investigation in its entirety – starting from the decision to collect one’s DNA to its eventual return to the owner.
One such safeguard could be to allow individuals to file complaints against authorities and seek adequate compensation in case they suffer due to wrongful convictions arising from mishandling, manipulation, or misuse of their DNA. A civil remedy must be injected in addition to the existing penalties under Chapter VIII, as they only proscribe wilful malpractices by the investigating authorities in cases brought forth by the Central Government or the DRB.
* Ishita Soni is a final year student at Symbiosis Law School, Pune.
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