JAMIA MILLIA ISLAMIA

FACULTY OF LAW

Assignment topic-

“DNA EVIDENCE: Brief of The DNA Technology (Use and

Application) Regulation Bill, 2018”

Name : SAIF ALI

Enrollment No. : JMI0183334

Program Name : L.L.M (Regular)

Course Title : FORENSIC SCIENCE

Semester : 2nd Sem. 2018-19

Signature of the Student: ……………………………………

Course Teacher : Miss. AAKRITI MATHUR

Signature of Teacher:
“DNA EVIDENCE: Brief of the DNA Technology (Use and Application) Regulation Bill,
2018”

Hypothesis

It is hypothesized that, some of the provision of DNA ‘Profiling’ bill is unconstitutional as it

violates Article 20(3)1 and fundamental right to privacy under article 212 of the constitution.

Research question

Question 1: Are the provisions of ‘The DNA Technology (Use and Application) Regulation Bill,
2018’ violating article 20(3) of the constitution?

Question 2: What is the legality of The DNA technology (use and application) Regulation Bill,
2018 with respect to Right to privacy?

Status of the Bill

It is passed by the Lok Sabha on 8th January, 2019 but it is still pending for the presidential
assent.

1
The Constitution of India, 1950, art. 20(3).
2
The Constitution of India, 1950, art. 21.

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CHAPTER I
INTRODUCTION
DNA test or DNA profiling is the process conducted by the laboratories for the purpose ranging
from Medical to Law enforcement. Basically, DNA is the bio-chemical helixcal structured
molecule which appears like a twisted rope ladder. It is a kind of information keeping biological
tool, which keeps the parental information of the person, all the traits and linkage with
interspecies also. The technology of DNA test was first used by Sir Alec Jeffrey in the year 1984
in England. Soon after that this technology was used in the forensic science to establish the
identity of the persons involved in the crime.
The admissibility of this scientific technique was discussed in Fyre V. United states3 and the
principle evolved became quite helpful in solving many cases with the help of DNA technology.
The application of DNA testing in India has been used to resolve certain question which
sometimes becomes very difficult to resolve the question of commission crime, who and how it
was committed? In India DNA technology has been used for criminal and civil matters. The
admissibility of the DNA evidence depends upon the accuracy and proper collection,
preservation and documentation which can satisfy the court the reliability and relevancy of the
evidence.
As such there is no specific provision under Indian evidence Act, 1872 and code of Criminal
Procedure 1973 to manage the DNA technology issues. Because of this reason, an investigation
officer faces problem in collecting evidences which uses these recent developments to prove the
accused person guilty. Hence the legislature came up with The DNA technology (use and
application) regulation bill, 2018 which was passed by the lok sabha and Rajya Sabha. It
incorporates the legal ambit in which the DNA technology can be used and defines the various
authorities like DNA data bank, DNA regulatory board and laboratory. But still this bill includes
many provision which seems arbitrary and against the fundamental rights like right to privacy
and right against self incrimination.
In India, the DNA technology is used for lot of cases but mainly of paternity disputes. The first
sensational case relating to paternity was Vilasani case4, in this case paternity of a child born out
of illicit relation was in issue, and father of the child was denying the paternity. The CJM

3
293 F. 1013 (D.C. Cir. 1923).
4
M.C. 17 of 1988.

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ordered both of them to undergo DNA test. It was proved that accused is the father of the child.
The CJM said that according to section 45 of Indian Evidence Act, in which expert opinion is
admissible, the DNA evidence also an expert opinion and hence admissible. This opinion was
upheld by the High court stating that the result of DNA test by itself could be deciding paternity.5
But the issue in the admissibility of DNA evidence is not only about violation of fundamental
right against self incrimination but rather, it is against the privacy of the person. For example the
current bill incorporates provision regarding collection of DNA of the person in the DNA bank
which if used otherwise leads to violation of the privacy of the person. This question of right to
privacy came before the courts in many cases. Let’s discuss the right to privacy and admissibility
of DNA evidences.
Right to Privacy:
India is a signatory to International Covenant on Civil and Political Rights, 1966 further article
21 of the constitution of India includes Right to privacy as established in Puttaswamy case6.
“No one shall be subject to arbitrary or unlawful interference with his privacy, family and home,
or correspondence, nor to unlawful attacks on his honor and reputation; does everyone have the
right to the protection of the law against such interference or attacks.”7
In M. Vijaya vs. The Chairman, Singareni Collieries,8 the Court, upon a detailed discussion of
the competing rights of a private party and public right with reference to right to privacy of a
person suspected of suffering from AIDS, held: “In the interests of the general public, it is
necessary for the State to identity HIV positive cases and any action taken in that regard cannot
be termed as unconstitutional as under Article 47 of the Constitution, the State was under an
obligation to take all steps for the improvement of the public health. A law designed to achieve
this object, if fair and reasonable, in our opinion will not be in breach of Article 21 of the
Constitution of India. It is well-settled that right to life guaranteed under Article 21 is not mere
animal existence. It is a right to enjoy all faculties of life. As a necessary corollary, right to life
includes right to healthy life."9

5
Dr. M.W. Pandit and Dr. Lalji Singh, ‘DNA Testing, Evidence Act and Expert Witness’, IPJ. Oct.-Dec. 2000, p. 99.
6
Supreme court of India, available at:
https://www.sci.gov.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf (accessed at 1:11
PM, April 8, 2019).
7
International Covenant on Civil and Political Rights, 1966, Art. 17.
8
A.I.R. 2001 A.P.502: 2002 AIHC 475.
9
Ibid.

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Finally in Puttaswamy vs. Union of India10, the court recognized right to privacy as fundamental
right under article 21 of the constitution so the bill will have to go through the test of public
purpose and the necessity in the national interest.

10
Supra note 6.

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CHAPTER II:

1. The DNA Technology (Use and Application) Regulation Bill, 2018

Background:
Currently in India, the use of DNA technology is not regulated by any specific law. Law
commission of India looked into the matter and submitted its report as a draft bill in July2017 11
hence this bill was introduced in lok sabha on August 9, 2018. It regulates the use of DNA
evidence in the civil and criminal matter.
The preamble of the bill says that, “to provide for the regulation of use and application of DNA
technology for the purposes of establishing the identity of certain categories of persons including
the victims, offenders, suspects, under trials, missing persons and unknown deceased persons
and for matters connected therewith or incidental thereto”12
In simple language, the bill recommends the use of DNA technology in the matters pertaining to
civil and criminal offences as scheduled in the bill. It establishes the DNA data bank, Regulatory
board and DNA testing laboratory. Generally in the criminal matters above the punishment of
seven years no consent is required from the person while for the offences below seven years, a
written consent is needed. Further the profile of the person can be removed on police report or by
the order of the magistrate on written request.

Key Issues and Analysis

 Regulation of the laboratories to identify an individual is not given in the bill.
 Consent in cases of civil matters is not required under the bill for the collection of the
sample.
 It is not clear whether data banks will also store profiles for civil matters as it may be the
violation of the right to privacy.
 There is no provision under the bill which talks about removal of DNA profiles by the
laboratories. They can contentiously say that such provision be included in the bill and
left to regulations.
11
Law Commission of India, 271th Report on Human DNA Profiling- A draft Bill for the Use and Regulation of DNA-
Based Technology”, July 2017. Available at: http://lawcommissionofindia.nic.in/reports/Report271.pdf. ( last
visited on April 12, 2019).
12
Available at: http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/142_2018_LS_Eng.pdf (Accessed at 3.54
PM on 12th of April 2019.)

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PART A: Main Points of the Bill

Key Features
 DNA Data: “The matters allowed in which DNA testing can be conducted is given under
schedule of the bill which includes offences within the Indian Penal Code, 1860, as well
as offences under other laws such as the Immoral Traffic (Prevention) Act, 1956, the
Medical Termination of Pregnancy Act, 1971, the Protection of Civil Rights Act, 1955,
and the Motor Vehicles Act, 1988. For civil matters, as per the schedule issues relating to
parentage disputes, issues related to pedigree, immigration or emigration, assisted
reproductive technologies, transplantation of human organs, and for the establishment of
individual identity.”13

Issue of Consent:
 For the offences punishable up to seven years taking written consent is mandatory before
collection of bodily sample but no such consent is needed in civil matters and if consent
is not given then investigating authorities can approach to the magistrate for the order but
it is discretionary.
 In case of victim of the offence or missing person the consent can be given by the
guardian of the person same applies in the case of minor or disabled person and if consent
is not given then magistrate by looking into the matter may order for the collection of the
sample.

Accreditation of DNA Laboratories:

 DNA regulatory Board will give accreditation to the laboratory for the validity up to two
years.
 “Accreditation of the laboratory can be revoked on failure to undertake DNA testing,
defying any provision of the act or not following the standards of quality in storing,
testing and analyzing of DNA samples.”14

13
Available at: https://www.prsindia.org/billtrack/dna-technology-use-and-application-regulation-bill-2018
(accessed at 5:08 PM on 14th April, 2019).
14
Ibid.

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DNA Data Bank:
 There will be National DNA and regional Data Bank for the state.
 Following indices are required to be maintained by the DNA Data Bank: “(i) crime scene
index, (ii) suspects’ or under trials’ index, (iii) offenders’ index, (iv) missing persons’
index, and (v) unknown deceased persons’ index.”15

Sharing of DNA data with Data Banks: The National and Regional DNA data Banks will
collect the DNA sample from the laboratories and in criminal cases the sample is supposed to be
given to the investigating officer while will be destroyed in any other cases.

DNA Regulatory Board:

 It will comprises of 12 members including: “(i) experts in the field of biological sciences,
(ii) Director General of the National Investigation Agency, (iii) Directors of the Central
Bureau of Investigation, Centre for DNA Fingerprinting and Diagnostics, Central
Forensic Science Laboratory, and (iv) member of the National Human Rights
Commission.
 The secretary in the Department of Biotechnology will be the ex-officio Chairperson of
the board.”16
 The board will supervise the laboratories, data banks, will grant accreditation to the
laboratories, it will develop modules for training of manpower. Further it will also
recommend central government on privacy protection matters.
 The Board will also ascertain the confidentiality of the DNA data.

Offences and penalties:

 “The penalty for various offences such as: (I) unauthorized disclosure of information
from the Data Bank, (ii) obtaining information from the Data Bank without authorization,
or (iii) using DNA sample without authorization, is imprisonment up to three years and
fine of up to one lakh rupees. Further, the penalty for intentional tampering or destruction

15
Ibid.
16
The DNA technology (use and application) Regulation Bill, 2018.

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 of biological evidence is imprisonment up to five years as well as fine of up to two lakh
rupees.”17
Bill covers matter relating to medical purpose: The bill allows the use of DNA Technology
for the matter listed in the schedule which includes matters such as assisted reproductive
technologies, transplantation of human organs, issues relating to establishment of individual
identity. By perusal of the bill it is unclear that the bill intends to regulate DNA laboratories
conducting medical and diagnostic purpose.
Unclear state how much DNA information is included: The bill is silent on the taking of
information other than identity that can be used for any other purpose. ‘For example, apart from
knowing the identity of the person the DNA information can also be used for extracting much
other information.’18 ‘Laws in countries such as South Africa and Ireland specify that the DNA
profile will not contain information related to medical or physical characteristics of the
individual.’19 ‘Note that the Law Commission in its report on the draft Bill of 2017 stated that
only the portion of the DNA which provides information on identity will be used for profiling.’20
However, this is not specified in the Bill.
DNA samples from photograph or video: Scientifically, it is impossible to collect DNA from
the virtual mediums however; the bill incorporates photographs and video recording of body
parts as a source of sample collection.

17
Ibid.
18
Maryland vs. King, Supreme Court of the United States, (October 2012).
19
Criminal Procedure Act, 1977 of South Africa, Section 36A(1)(fC).
20
Supra note 11.

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Hypothesis result:
It is difficult to say that whether the bill is unconstitutional or not but some of the provisions of
the bill conflicts with the Right to Privacy Judgment.

Research Questions answered:

Question 1: Are the provisions of ‘The DNA Technology (Use and Application) Regulation Bill,
2018’ violating article 20(3) of the constitution?
The constitutional validity can be challenged on the basis of Article 20(3) of the Indian
Constitution which provides that ―No person accused of an offence shall be compelled to be a
witness against oneself. The answer can be drawn from State of Bombay Vs. Kathikalu21 where it
was held by the Hon‘ble Court that giving the specimen and information for forensic
examination is just like providing relevant facts within the meaning of Sections 9 & 11 of
Evidence Act and it does not fall under the parameter of evidence against one self.
Further, In Selvi vs. State of Karnataka,22 while testing the validity of DNA tests on the anvil of
Article 20(3) of the Constitution of India, the Supreme Court made following observation, “The
matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal
acts. It may also be recalled that as per the majority decision in Kathi Kalu Oghad (AIR 1961 SC
1808), the use of material samples such as fingerprints for the purpose of comparison and
identification does not amount to a testimonial act for the purpose of Article 20(3). Hence, the
taking and retention of DNA samples which are in the nature of physical evidence does not face
constitutional hurdles in the Indian context.”
So as such this bill does not violate article 20(3) of the constitution, it is in the permissible limit
because the interpretation of the articles clear that, it only bars information which is in the
capacity of the person. This article does not become hurdle for the prosecuting agencies. It
imposes bar only for the information which are in the personal capacity of the person or
information that is within his mind. On the rest of the matter the appropriate authorities may
recover information from the person like getting finger prints and Blood sample. Same legal
principle applies in the admissibility of DNA. Hence, this bill does not violate article 20(3) of the
constitution but the provision of consent can be challenged.

21
AIR 1961 SC 1808.
22
AIR 2010 7 SCC 263.

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Question 2: What is the legality of The DNA technology (use and application) Regulation Bill,
2018 with respect to Right to privacy?
In the opinion of the author, this bill does not satisfy the constitutional three-part test of legality,
necessity and proportionality as prescribed in Puttaswamy vs. Union of India.23 Which means the
law must be necessary for the purpose it was enacted as in this case DNA technology is
considered necessary for the investigation purpose but we know the practical situation of our
agencies. Our criminal law does not rely in the statement given to the police officer and even the
investigating agencies and law enforcement agencies are not separated then in this scenario
thinking of bringing more complicated Technology will lead to the misuse. Further there are not
enough safeguards in the bill for the misuse of the Data and even no clear specific time period is
given for keeping profile in the Data Bank.
Further, the concept of consent is not clear as in offences above seven year no consent is needed
but what will happen to the Fundamental right against the self incrimination of the person. A
distinction is needed for the voluntarily giving the DNA sample and making it mandatory. And
even the bill is silent when the sample will be collected, after the reporting of the case or prior to
the investigation.
 Can a person himself or herself approach to the authorities to collect sample out of
his/her body?
 Who will collect the sample, Investigation officer or the laboratory people?
 If IO, then are they going to be trained for it if not then how can the laboratory people
will reach to the crime scene?
 How their coordination will be managed?
 In how much time the sample can be taken?
 How this structure of DNA technology will be established in the meager spending of 4%
of its GDP on criminal justice system?24
These are some questions which are needed to be answered.

23
Id.
24
Available at:
https://www.google.co.in/search?ei=eru5XNDNN5aWvQSRurD4CA&q=gdp+percent+on+criminal+justice+inida&oq
=gdp+percent+on+criminal+justice+inida&gs_l=psy-ab.3..33i21j33i160.3998.5385..5542...0.0..0.383.1214.2-
2j2......0....1..gws-wiz.......0i71.GiaE6TSmELQ (visited on 18th of April, 2019).

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BIBLIOGRAPHY

BOOKS:

1- Dr. M.W. Pandit and Dr. Lalji Singh, ‘DNA Testing, Evidence Act and Expert Witness’,
Indian Police Journal. Oct.-Dec. 2000 Criminal law manual.
2- Lal Batuk, “Introduction to Criminal procedure code”, Eastern Law book Publication.
3- Dr. J.N. Pandey, Constitutional law of India (Central Law Agency, 51th edn., 2018).

WEB:

1. www.manuptra.com

2. www.shodhganga.com

3. www.mondaq.com

4. www.legalservicesindia.com

5. www.livelaw.com

6. www.lawoctopus.com

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