“Infringement of Fundamental Rights in DNA Profiling Bill, 2019”

PSDA

Submitted by
Anushka Rav
Enrolment no.: 20517703819
Subject: Constitutional Law II (LLB 204)

Submitted to
Ms. Deepa Kaushik

Vivekananda School of Law and Legal Studies

VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES
Pitampura, Delhi-110034
2020
 Infringement of Fundamental Rights in DNA Profiling Bill, 2019
Introduction:
DNA is found everywhere. It is often referred to as the blueprint of life. DNA
profiling is a type of molecular genetic analysis that looks for specific DNA patterns.
Apart from identifying individuals accountable for violent crimes, DNA profiling can
also be used by the legal system to establish family links in cases of challenged
paternity or immigration.1 The case of Colin Pitchfork demonstrated to the world the
prospects of criminal investigation and the importance of this forensic technique. 2
Kunhiraman v. Manoj3, a case in India, established the legality of DNA tests. The
DNA analysis was accepted by the court under Section 45 of the Evidence Act, 1860.
In India, there is no explicit legislation that can provide explicit guidance to
investigating agencies or the courts for dealing with such issues. Both the Criminal
Procedure Code and the Indian Evidence Act fail to adequately address DNA
collection and testing because they do not establish processes for how DNA samples
should be acquired, handled, shared, accessed, safeguarded, and destroyed. 4 The
development of DNA technologies has reached a point where no country can
disregard its utility in the criminal justice system.
In the case of The People v. George Wesley, Justice Joseph Harris stated, “DNA
Profiling is the most significant advancement in the ‘quest for truth’ since
cross-examination”. India has decided to pass a law regulating the use of DNA;
however, the proposed DNA Bill raises concerns about one's privacy of data obtained
through DNA; therefore, a data protection bill must be passed before the DNA Bill is
passed, as the right to privacy is an absolute fundamental right. 5 Courts are also
hesitant to utilize the DNA test procedure because it raises major concerns about the
right to privacy, which is protected by Article 21 of the Constitution, and the right
against self-incrimination, which is protected by Article 20(3). 6 Other severe
concerns include the prospect of caste-based profiling, disguised consent, and the

1
Baharul Islam, “Law on DNA Test and Human Dignity; A Legal Confliction in India” 3 IJRMSS 55
(2015).
2
Arnav Bishnoi and Sunakshi Agarwal, “The DNA Technology (Use & Application) Regulation Bill,
2019 vis-a-vis Data Privacy” VIT Chennai.
3
II (1991) DMC 499.
4
Supra note 1.
5
Supra note 2.
6
DNA Technology in Indian Legal Scenario, available at:
https://blog.ipleaders.in/dna-technology-in-indian-legal-scenario/ (last visited on June 10, 2021).
bill's promotion of a surveillance state due to the lack of legislation protecting
subjects’ DNA data.
In the K. Puttaswamy judgment, a point counter to all such legislation was discussed
and Justice Chandrachud in para 181 of the judgment put forth his argument and also
questioned: “How can you just use any individuals personal data in the public
interest?”.7
Privacy, Consent, and DNA Technology (Use and Application) Regulation Bill,
2019:
The bill attempts to govern DNA technologies used to verify a person's identity in
criminal and civil issues such as parenthood, organ transplant, immigration, and
individual identification. The bill's goal is to build a single DNA database with
numerous indices containing profiles of people in custody, suspects, victims,
offenders, and their families, as well as any DNA found at the crime scene. In a
densely populated country like India, these kinds of databases are in high demand,
since they may aid in the prevention of many sorts of fraud such as ration card fraud,
voter identity card fraud, and driving license fraud, among others. The database could
aid Indian authorities in distinguishing between criminals and non-criminals.
This bill declares that an individual's written consent is required before obtaining any
form of DNA sample from them, but that this consent is not required for offenses that
carry a sentence of more than seven years or for DNA profiling for civil issues. 8
Equality before law:
The CDFD's stated objectives include 'to develop DNA databases of distinct caste
communities of India', which indicates how a DNA database could be misused in
India. Similarly, the Report of the Working Group for the Eleventh Five-Year Plan
identifies the following as a possible application of DNA profiling technology:
‘Human population evaluation to induce profiling of distinct caste populations of
India for use in forensic DNA fingerprinting and the development of DNA
databases.’Though it may be argued that this information may be used for research,
the notion that caste is an unchangeable hereditary trait is flawed in and of itself, as it
appears to neglect the reality that people change their caste and that caste is not
uniformly passed down through marriage. 9 The Standing Committee was particularly

7
Justice K.S.Puttaswamy (Retd) vs Union Of India, AIR 2017 SC 4161.
8
Supra note 6.
9
Supra note 1.
concerned that this Bill could escalate to caste-based profiling. In India, the Scheduled
Caste, and Scheduled Tribe populations have all been subjected to police scrutiny and
prejudice through the years. The arrest, conviction, and undertrial populations are
generally made up of these vulnerable groups, a unified database will primarily
contain their DNA profiles, increasing the possibility of caste-based profiling. It
would enable authorities to systematically target marginalized groups of society by
repeatedly referring their DNA for crimes.10 As a result, the bill breaches Article 14
of the Indian Constitution, which emphasizes equal treatment. The bill promotes caste
demarcation, which further undermines and impacts particular groups in employment,
medical concerns, etc.
This is a concern that was expressed in a British parliamentary report, which claims
that blacks and ethnic minorities are unfairly represented in their database because
they are detained for alleged crimes in greater numbers. The current Bill addresses
these concerns about racial profiling's inherent imbalance while establishing a
national DNA database. 11
Right against Self Incrimination:
The Indian Constitution recognizes the Latin maxim, Nemo Debet Prodere Ipsum (no
one can be required to be his own betrayer) as a fundamental right. Self-incriminating
statements relevant to the allegations brought against an accused are also protected
under Article 20(3). The Indian Constitution also ensures that evidence is not used to
discriminate or breach the "right against self-incrimination" in any way. The
constitution also ensures the protection of life and personal liberty of anyone who
provides their DNA profile for whatever reason. Despite this, it was decided that no
one can be forced to furnish a blood sample for forensics against their will and that no
contrary assumption may be established as a result of such behavior. While
considering the legitimacy of fingerprint, a Constitutional Bench of the Apex Court
remarked that being a witness is not the same as providing evidence in the broadest
sense. Being a witness entails providing some kind of information in the form of a
testimony that would convict her/him, rather than merely the structural process of
generating any document in court that contains any information pertaining to the

10
Prodding Privacy: Why India’s DNA Regulation will be Curtains for Autonomy, available at:
https://www.theleaflet.in/prodding-privacy-why-indias-dna-regulation-will-be-curtains-for-autonomy/
(last visited on June 10, 2021).
11
Sachil Kumar, Anoop K. Verma, Pratibha Singh, Raghvendra Singh, “Current scenario of forensic
DNA databases in or outside India and their relative risk” 6 EJFS 1 (2016).
controversy; the only caveat is that it should not include any statement based on the
suspect's knowledge.12
Right to Privacy:
The International Covenant on Civil and Political Rights, 1966, and the Universal
Declaration of Human Rights, 1948, are two of the many international treaties that
promote and safeguard human rights. The Supreme Court recognizes the Right to
Privacy as an individual's absolute right under Article 21. Despite the fact that privacy
is an absolute right, the current DNA Bill has created a stir by referring to the use of
data stored by officials, as well as other legislation and correlating provisions in
existence that state that unjustified invasion of privacy should not occur unless it is
necessary for the larger public interest. 13 Unlike other forms of identification, such as
fingerprints, DNA can reveal extremely sensitive details about a person such as
medical history, family history, and location.
As a result, having a DNA database with a wide scope and uploading more DNA
profiles to a database raises the risk of data being misused because there is a greater
chance for profiling, tracking, and accessibility to private data. The Bill, in its present
form, safeguards against such misuse to some extent by restricting the details that will
be stored with a DNA profile, but it is unclear whether DNA profiles of people who
have been convicted of a crime will be stored and searched separately from other
profiles.14 There are concerns regarding privacy and confidentiality. The retention of
an individual's DNA and fingerprints in a database enables biological tagging or
‘bio-surveillance’, which can be used to try to figure out where they've been. As a
result, DNA databases transfer the balance of power from the citizen to the state. 15
Personal autonomy is of the highest importance, according to the Supreme Court in
Selvi vs. the State of Karnataka 16, and any interference with it breaches the right to
privacy, particularly when a person faces criminal charges or penalties. As a result,
self-incrimination could result from a hypothetical cross-referencing of DNA gathered
for civil and criminal issues. In the same case, Justice Ranjana Desai stated that, while
the preservation and collecting of DNA samples are not unlawful, the future use and
development of DNA profiling for testimonial purposes may meet constitutional

12
Supra note 2.
13
Supra note 2.
14
Supra note 1.
15
Supra note 11.
16
AIR 2010 SC 1974.
challenges under Article 20(3). The problem with DNA testing is that it may infringe
on a person's right to privacy and diminish his or her dignity.
The Supreme Court declared in the historic K. Puttaswamy judgment 17 that privacy
allows an individual to maintain body and mind autonomy and that the right to govern
the acquisition, use, storage, and distribution of personal information is a fundamental
part of that right.
Other legal issues around DNA profiling in India:
DNA profiling can help solve a criminal case quickly and effectively. With the advent
of the DNA Database, it is a valuable instrument in detecting an accused person and
in keeping the crime rate under control. DNA technology has a slew of potential uses
that have been anticipated over time. However, there are significant flaws.
Jurisdiction:
The law lacks clarity on the jurisdiction, as the authenticity of DNA profiles
discovered outside of India is unknown because the Act only applies to India as a
whole.18
Unified database:
The goal of keeping a database is to be able to identify people. The information
collected can be used for a variety of purposes, ranging from helping criminal
adjudication and prosecution to identification for civil matters. As a result,
authorization to collect DNA for civil purposes cannot be construed as a blanket
consent to be identified in a criminal proceeding. This might also shift the burden of
proof onto someone whose DNA matches in a future criminal case, forcing them to
establish their innocence in the face of a DNA match. As a result, civil and criminal
databases should be kept separate. 19
Surveillance Issues:
Though Bill's primary goal is to use DNA profiles and DNA specimens to identify
criminals, Bill's provisions also permit population testing and analysis of the samples
collected. According to the American Constitution Society for Law and Policy,
adding the DNA data of people with no privacy to these databases changes the
government's objective from criminal investigation to population surveillance. 20

17
Supra note 7.
18
Supra note 1.
19
Supra note 10.
20
Supra note 1.
Several portions of the Bill are in conflict with the Constitution and judicial
precedence. The bill disregards the interdependence of rights and infringes on an
individual's freedom, privacy, and right to make a decision.
Suggestions:
Prior to passing this Bill, the government should divide the database into civil and
criminal databases, flesh out the civil database's details, and ensure there is no
cross-referencing across databases.
The DNA profiles of most people who are acquitted in Scotland are required to be
removed from the database by law. 21 As a result, we can implement a similar method,
in which DNA profiles should be automatically deleted once the civil case is
resolved.
Conclusion:
India could benefit from legislation that governs and harmonizes the use, collecting,
processing, and storage of DNA samples for criminal investigations. The Indian
courts' negative attitude toward DNA testing and its implementation is, in fact, highly
cautious. The lack of a solid privacy regulation raises worries about the proposed
DNA Profiling Bill's intrusive character. The courts are wary about applying this
criterion because they believe it may violate the basic principles of Human Rights and
Dignity. There needs to be a greater public understanding of the benefits and concerns
of DNA databases, as well as common ethical and privacy norms for the
establishment and administration of DNA databases that take citizens' perspectives
into account shall be adopted.
References:
1. https://chennai.vit.ac.in/files/The%20DNA%20Technology%20(Use%20&%20Ap
plication).pdf
2. http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.695.8795&rep=rep1&typ

e=pdf#page=55
3. https://reader.elsevier.com/reader/sd/pii/S2090536X15000246?token=56D93519D
EF220FC52BF243C184D7F83700DAB5A96706ADCDBD6B8EA98B8EB6117D9C
291C3CB23149BB04D3B9773FFBF&originRegion=eu-west-1&originCreation=202
10531185905
4. https://blog.ipleaders.in/dna-technology-in-indian-legal-scenario/

21
Supra note 1.
5. https://www.theleaflet.in/prodding-privacy-why-indias-dna-regulation-will-be-curt
ains-for-autonomy/
6. http://classic.austlii.edu.au/au/journals/UWSLawRw/2013/5.pdf
7. http://www.nlujlawreview.in/legality-of-the-dna-technology-use-and-application-re
gulation-bill-2019-and-right-to-privacy/
8. https://www.mondaq.com/india/new-technology/782032/dna-profiling-in-india-tow
ards-the-new-age-dna-technology-use-and-application-bill-2018
9. https://www.ijlmh.com/wp-content/uploads/2019/06/DNA-Fingerprinting-Current-
Perspectives-and-Challenges-in-India-%E2%80%93-An-Analysis.pdf