Practical Pieces & Perspectives

Dedication: Faculty, Assam (Central) University, Silchar. LLM (Gold Medalists) Rashtriya Raksha University, Gujarat; BALLB, Indraprastha University, Delhi.

Human DNA (Deoxyribonucleic Acid), is the fundamental genetic blueprint of the person. It is hereditary and responsible for the characteristics of the person.[1] The advanced biotechnology enabling the study & exploration of DNA has fundamentally revolutionized the world. DNA today can be modified[2], engineered[3], patented[4] and fingerprinted[5]. DNA Fingerprinting is one of the most revolutionized techniques to analyse DNA of individuals.[6] DNA fingerprinting (DNA Profiling /Typing /Testing)[7] is a form of DNA forensic technology that is used to identify persons by analysing the unique patterns within their DNA.[8] About 99.9% of DNA of two individuals is the same[9], however, 0.1% of DNA is unique to every individual, which results in all forms of variations in physical appearances among individuals[10] and makes DNA of every individual distinct, with exceptions to identical twins[11].

DNA Fingerprinting technology has been successfully used for criminal investigation purposes by different countries. The modus operandi of  DNA fingerprinting in criminal investigations is that a DNA sample is collected from the crime scene which is matched with the DNA sample collected from the crime accused.[12] If a conclusive match occurs then, the guilt of the accused can be established. Since, DNA of every person is different thus, matching of DNA fingerprint aids in the speed and accuracy of the criminal investigation. In addition to such advantageous use, the DNA Fingerprinting/Profiling has versatile uses like identification of dead bodies, criminals, paternity tests, immigration disputes, etc.[13]

Such advantageous applications of DNA Fingerprinting have stimulated different countries to establish the DNA Data banks to store the DNA profiles (that is the DNA samples collected by the state) of the people and use them as the need arises. Several countries (UK, USA, China, Australia, New Zealand, Europe, etc.)have created their respective DNA Data Banks.[14]

The wide usage of the DNA Data Banks across the globe has encouraged India to use and regulate DNA Profiling technology and create a DNA Database of its own. The Union government as well as several provincial governments have taken steps in the creation of the DNA Data Bank in India.[15]  The Union Cabinet had in 2018 cleared the DNA Technology (Use & Application) Regulation Bill pursuant to the 271^st report of the Indian Law Commission.[16] The bill, however, couldn’t be passed in the year 2018 and lapsed pursuant to the dissolution of the 16^th Lok Sabha(Lower house).[17] The Bill thus was later presented to the Union parliament after constitution of the 17^th Lok Sabha in the year 2019[18] and is currently under the consideration of the Standing Committee of the Rajya Sabha (Upper House).[19] The DNA Technology Bill aims to regulate the profiling of human DNA in India and establishes a DNA Data Bank at the national as well as at the regional level.[20] Though, establishing a DNA Data Bank to store and preserve the DNA Profiles of people and creating a DNA Regulatory Body to regulate the application of DNA profiling in India is a great step. However, a few points need to be addressed before the application of the act. Considering the scope of a short article, the author would only be discussing the aspect of the Right to Privacy and technological upgradations required for effective implementation of the proposed legislation.

Pursuant to the Judgement of the Supreme Court in Justice KS Puttaswamy (retired) v. Union of India[21], the Right to privacy is part of Article 21 of the Indian Constitution. The DNA Technology Bill, 2019 can cause serious ingress to the privacy of the people of India if not amended considering the golden triangular rule set by the Hon’ble Supreme Court of India in the Minerva Mills Ltd. v. Union of India[22]. As per the golden triangle rule, in order to curtail the personal liberty of any person, such an act of the government needs to pass the tests of Article 14, 19, and 21 of the Indian Constitution. Thus, after recognition of the Right of Privacy under Article 21 of the Indian Constitution, the Privacy of any person in India can be curtailed as per the procedure established by law, which must be just, fair, reasonable and should not be violative of Article 14’s Right to Equality, Article 19’s Right to Freedom of Speech and Expression, and Article 21’s Right to Life and Personal Liberty.[23]

The Human DNA Regulation Bill, 2019 provides that the state is empowered to collect and store the DNA samples of accused, criminals, offenders of civil and matrimonial disputes. One could have accepted the constitutionality of the scope of the DNA Regulation Act if the act would have limited its applicability to only the culprits of criminal offences. However, furthering the scope of applicability of the proposed legislation would cause a serious infringement of the Right to Privacy, thus, making the bill unconstitutional. We must note that the Law Commission of India had recommended the Bill when the Supreme Court had not declared Right to Privacy as the part of Right to Life and Personal Liberty under Article 21 of the Indian Constitution. Therefore, it is important to reduce the scope of the bill in order to ensure the effective realization of the Right to Privacy of individual people.

Further, the government must also ensure to create a secured infrastructure as well as an environment for the collection, storage, and preservation of the DNA sample of the people. Several infrastructural and technological upgradations need to be undertaken for the effective implementation of the act’s objectives. It is important to create a special purpose vehicle to look into aspects for the creation of the security infrastructure to secure the storage of DNA Profiles in the DNA Data Bank.

In today’s world, there is confusingly fast exploitation of technology by criminals. The government should ensure that the DNA Profiles stored in DNA Data Banks are secured from all frontiers of attack including cyberattacks. Storage and Access of gigantic DNA Data would only be done through the use of computer technology. Therefore, there is a high probability that the cyber-machinery responsible to regulate the working of DNA Data Banks could be attacked and all the sensitive data could be leaked. Thus, a dedicated body must be constituted to protect the DNA data from any possible cyberattack.

In addition to the technological and infrastructural upgradations, the fundamentals of the legal regime regulating the world of technology also need to be enhanced. Today the Indian Legal system is continuously advancing itself to meet the challenges posed by technological advancements. Regulation of Data in this technologically oriented world is one such challenge with which the Indian Legal system is competing. Various steps have been taken to ensure effective regulation and protection of Data in India. Banning of Chinese apps in India is one such step.[24] The government had also in 2019 tabled the Personal Data Protection Bill in the Union Parliament to protect the personal Data of people.[25] It is of no dispute that the genetic information of any individual is his most sensitive personal data. The storage of DNA profiles makes such extremely sensitive data vulnerable to hacking-attacks. Therefore, the government should first build up legal infrastructure to protect the personal data of people including genetic information. Thus, the Data Protection Bill must be legislated before the implementation of the Human DNA Regulation Bill. Further, the Data Protection Bill must ensure to protect all forms of Data including the Data of human DNA.

The use and application of Human DNA Data to fasten criminal investigations and further using the DNA Data through DNA Data Analyses Technology for other public purposes are always beneficial to the society at large. However, in order to administer the benefits of advancingly modernized technologies to society, effective regulatory mechanisms and safety features must be developed by the state. Thus, in order to reap the benefits of the DNA Data Analyses technology, the state must ensure to preserve the human DNA Data collected by it from every possible breach. Further, in order to administer the legislative provisions of the proposed legislation, certain legislative changes must be brought in the bill to make it in line with the Right to Privacy of people. The Constitutional Institutions in India are bound by the doctrine of Basic Structure and the Fundamental Rights of the people of India. That is, the Basic Structure Doctrine and Fundamental Rights act as a constitutional embargo over the exercise of power by any constitutional functionary in India. Thus, the act of the state violating the Doctrine of Basic Structure or the Fundamental Rights mentioned in Part III of the Indian Constitution is deemed to be unconstitutional and unimplementable in the Indian Legal System. Therefore, the provisions of the DNA Regulation Bill, 2019 over the subject of collection of DNA samples must be redrafted considering the Right to Privacy and Personal Liberty of the people. Thus, its scope must be reduced to a limited segment of people to ensure that the procedure established by the law to curtail the liberty of an individual is just, fair and reasonable.