The Indian criminal legal system is based on the adversarial system where two parties present their disputed facts before a judge and the parties tend to support their arguments by producing evidence. In such a system, the judge does not actively take part in the forensic debate in the court and plays a non-interventionist role whereas the onus is on the prosecution to prove its case beyond reasonable doubt.

In some of the criminal trials, scientific and forensic evidence play a substantive role and out of which DNA (Deoxyribonucleic Acid) testing is very common. Simply, DNA is understood as a chemical name for the long molecule that contains the genetic code making each of the species unique. It was Malimath Committee who suggested that forensic evidence should also be given weightage while balancing the scale of evidence.

The Orissa High Court in the case of Thogorani Alias K. Damayanti (2004) has held that “DNA evidence is now a predominant forensic technique for identifying criminals when biological tissues are left at scene of crime. Such testing not only helps to convict but also serves to exonerate”. Certainly, DNA evidence also plays a significant role in civil cases where the same could be used to ascertain surrogacy, parentage, etc.

While the reliance on DNA evidence has seen a paradigm shift, no specific legislation has yet been incorporated to regulate the use and application of DNA technology. However, to cover the void, The DNA Technology (Use and Application) Regulation Bill, 2019 (DNA Bill) came to be introduced in Lok Sabha on July 8, 2019.

Nonetheless, the same Bill did not become a law till now as the Bill was referred to the Parliamentary Standing Committee on Science and Technology headed by Jairam Ramesh, who in turn has submitted its report on February 3, 2021 signalling several issues of concern.

Areas of concern

The Committee stated that there is a potential risk of this law being misused to target certain sections of the society and has therefore, suggested several recommendations. Primarily, the DNA Bill aims to regulate the DNA technology for the purposes of establishing the identity of certain categories of persons including the victims, offenders, suspects, undertrials, etc, and to establish a DNA regulatory board which shall also govern the DNA laboratories.

However, one of the major concerns that loom around the Bill is the concern related to privacy. In the case of KS Puttuswamy Vs Union of India , privacy was declared as a fundamental right protected under Article 21 of the Indian Constitution.

Further, the European Court of Human Rights through a seventeen-judge bench in the case of Marper v. United Kingdom has also held that retention of data related to DNA without the consent of an individual is capable of affecting private life of an individual as it violates Article 8 of the European Convention on Human Rights which ensures right to respect for one’s private and family life, his home and his correspondence.

Although in India, the Bill has given adequate stress on the question of consent under Clause 21 stating that no bodily substances shall be taken from a person who is arrested for an offence unless the consent is given in writing for taking the same. However, an exception has been carved out which allows eclipsing the part of consent when the person who is arrested has been accused for an offence punishable with death or imprisonment for a term exceeding

Moreover, even if the person is accused of an offence which is punishable for less than seven years and thereby refuses to give consent for taking bodily substances, the investigating officer still can bypass such refusal by approaching the Magistrate with an application having jurisdiction to take such bodily substances who therefore can authorise the same. Hence, there is a probable threat to the privacy and autonomy of persons as their consent is undervalued.

Another issue is that the data which is being collected can also be used for producing the evidence in the civil cases as per Clause 34. Seemingly, there is a unified data base and parallel procedure for acquiring the access to data in civil and criminal cases keeping it on an equal footing whereas in both the types of cases, there is a significant difference in burden of proof because in criminal case, the burden has to be proved beyond reasonable doubt while in civil cases, it is proved by a preponderance of probabilities.

Moreover, the consent part is totally silent in the civil cases. Thus, the unified data can lead to speculative searching and higher risk of violation of privacy. Additionally, the Bill also seeks for the establishment of regional and central DNA data bank which will be responsible for maintaining different indices so as to accumulate the data.

However, the nature of work is technical and the Bill completely fails to recognise the training part of these persons who will operate such banks. Moreover, the DNA data comes under the purview of sensitive personal data as per Rule 3 of Information Technology Rules, 2011 and hence, high safeguarding measures are required to collect and store data which unfortunately the Bill misses to cover. Further, the lack of data protection law and poor data storage infrastructure amplifies the risk of data leakage and misuse.

Apparently, the legislative objective of the Bill is serving the ends of the society and fulfils the need of proper regulation. Nonetheless, some potential risks that have given the red signal to the Bill must be considered and reworked so that the Bill can emerge into a Law. Seeing the heavy reliance on DNA evidence in criminal trial, a comprehensive law on DNA evidence is the need of the hour.

(The author is Partner, AK Mylsamy & Associates LLP, a law firm in Chennai)

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