DNA Technology (Use and Application) Regulation Bill, 2018: An Analysis

Context:

• Recently, the Union Cabinet approved the DNA Technology (Use and Application) Regulation Bill, 2018.

What is DNA technology?

• DNA technology is the study and manipulation of genetic materials.
• Scientists are using DNA technology for a wide variety of purposes.
• A major component of DNA technology is cloning, which is the process of making multiple, identical copies of a gene.
• DNA technology is useful in the production of vaccines and protein therapies such as human insulin, interferon and human growth hormone.
• It is also used for treating haemophilia and in the development of gene therapy.
• New DNA based technologies emerged:- PLR, Recombinant DNA, Cloning, DNA finger printing, gene therapy, DNA profiling, DNA microarray technology.
• The DNA profiling was use in the Rajiv Gandhi case and later DNA fingerprinting in the tandoor murder case.
• But from 2007 onwards, India is lagging behind, largely because people had some questions and issues regarding privacy.

Need for DNA technology:

1. Vital for living beings:

• DNA is vital for all living beings including plants.
• It is important for inheritance, coding for proteins and the genetic instructions guide for life and its processes.
• DNA holds the instructions for an organism’s or each cell’s development and reproduction and ultimately death.

2. Useful in crime investigations:

• DNA technology is used worldwide in crime investigations.
• Identifying of unclaimed bodies.
• Determining parentage.
• It also supplies the courts with accurate information about all the relevant features of identification of criminals.
• It helps instrengthening justice delivery system.

3. To determine Biological relationships:

• DNA analysis is extremely useful in ascertaining the identification of a person from his/her DNA sample, or establishing biological relationships between individuals.
• The information from DNA samples can be useful in revealing physical characteristics of a person.
• It is also useful to uncertain more intrusive information like their allergies or susceptibility to disease.

Despite having above significance, the DNA technology also have some limitations such as:

1. Privacy issues:

• DNA samples can reveal not just physical features of individual, but also more intrusive information like their allergies, or susceptibility to diseases.
• Consequently, there is a greater risk of information from DNA analysis getting misused.
• The misuse of information can cause serious harm to individuals and the society as a whole.

2. Not reliable data:

• Sometimes, DNA data recovered from a crime scene may not be enough to produce a correct match for the algorithms.

3. DNA profiling:DNA profiling can be mismatched while generating a match. It will be difficult to resort if wrongly matched is taken as evidence.
4. Data storage issues are also involved.
5. DNA technology is very expensive

Laws in other Countries

1. Argentina:

• The National Criminal Procedure Code was amended in 2009 to provide for uniform approach to DNA testing in cases of illegal adoption and falsification of identity
• They have established a National Bank of Genetic Data and DNA.

2. United States of America :

• The Federal Bureau of Investigation designed the Combined DNA Index System (CODIS) with the purpose of amalgamating forensic sciences and computer technology into an effectual apparatus for solving serious crimes.

3. China passed a law allowing the Ministry of Justice and the Ministry of Interior to establish DNA Banks.

Various reports related to DNA:

1. The A. P. Shah Committee Report:

• The report suggested safeguards to prevent illegal collection and use of DNA data.
• Also provides safeguards to prevent the proposed body from misusing the same.

2. Law commission report:

• The Law Commission of India, in its 271st report, prepared the draft Bill named The DNA Based Technology (Use and Regulation) Bill, 2017 after examining various judicial pronouncements and constitutional provisions.
• It however had also flagged that privacy concerns and the ethics involved in this scientific collection of data were very high.
• The Commission highlighted that the procedure for DNA profiling, if given statutory recognition, should be done legitimately as per constitutional provisions.

3. Malimath Committee Report: It recommended amendment of Cr.P.C conferring all criminal courts at all levels with the inherent power to pass appropriate orders.
4. Maintenance of strict confidentiality with regard to keeping of records of DNA profiles and their use.
5. The violators of the provisions would be liable for punishment of imprisonment, which may extend up to three years and also fine which may extend up to Rs.2 lakhs.

History of previous DNA Bills:

•  Previously, various attempts were taken to frame a Bill in 2007, 2015, 2017 with different names.
• The draft Bill was first named DNA Profiling Bill in 2007
• Then in 2015 the Bill was named ‘‘Human DNA Profiling Bill ‘
• In 2017- Human DNA Profiling – A draft Bill for the Use and Regulation of DNA-Based Technology”
• In 2018- The DNA Technology (Use and Application) Regulation Bill, 2018

Previous Bills:

1. The DNA Fingerprinting Bill: It was introduced to establish regulatory standards and institutions for DNA testing and supervise activities that carried out by authorized laboratories.

2. “Human DNA Profiling – A draft Bill for the Use and Regulation of DNA-Based Technology”:

• The Bill was prepared by the Department of Biotechnology and the Hyderabad-based Centre for DNA-Fingerprinting and Diagostics.
• The Bill proposes to allow collection of samples from private parts of human body for DNA profiling and date preservation with the approval of a regulatory body.
• It suggests that a National DNA Profiling Board and a National DNA Bank be set up in Hyderabad, with every state having a regional DNA data bank.
• The bill mandates that the DNA profile or samples be kept confidential.

There are various criticisms related to this Bill:

1. Privacy issues: Concerns over privacy or misuse of information still prevails.

2.Issue of security: Profiling standard as a means to protecting privacy in its report- This standard has yet to find its way in the text of the Bill.

3. It has been pointed out that information like ancestry or susceptibility to a disease or other genetic traits is liable to be misused.

4. It has been said that DNA Profiling has not led to an improvement in conviction rates in countries where it is already being followed.

In order to address the above issues, the Union Cabinet, recently approved the DNA Technology (Use and Application) Regulation Bill, 2018 with following features:

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

Key features:

1. The Bill seeks to “provide for the regulation of use and application of DNA technology.
2. DNA regulation board:

• The board will certify labs authorized to carry out DNA testing and lay down procedure and guidelines for collection, storage, sharing and deletion of DNA information.
• The Secretary of the Department of Biotechnology has been made the ex-officio chairman of the proposed DNA Regulatory Board.

3. DNA Data Bank: A National DNA Databank and certain regional DNA Databanks will store DNA profiles received from DNA labs in a specified format.
4. Limited purpose:The Bill states that DNA data contained in any DNA labs and Databank “shall be used for the purpose of facilitating identification of the person and not for any other purpose”. It will only be made available to facilitate the identification of persons in criminal cases.
5. Safeguard against misuse: The Bill states that disclosure of DNA information to unauthorized persons, or for unauthorized purposes, shall lead to penalties upto three years in jail or up to Rs 1 lakh as fine.
6. The proposed legislation will enable cross-matching of DNA of persons reported missing and unidentified dead bodies and also for establishing the identity of victims during mass disasters.
7. It seeks to ensure that DNA test results are reliable and the data is protected from misuse or abuse in terms of people’s privacy rights.

However, some activists and lawyers criticized this bill on the following grounds:

• Activists and lawyers have argued that India does not have a data protection law and that information like ancestry or susceptibility to a disease, or other genetic traits, is liable to be misused.
• It has also been argued that DNA tests have not led to an improvement in conviction rates in countries where legislations is already being followed.

Challenges in implementation in above mentionedBills:

1. On data collection and deletion:

• At the time of collection of DNA data, the person will also have to provide their name, gender, address, and their caste. It does not set a limit to how long someone’s DNA will keep on record. In the UK, DNA data of a recordable offence can be kept for only six years.
• On data use:In most countries, the DNA database is used only for criminal investigations, but India’s bill allows for a lot more. For instance, it can be used to identify victims of accidents or disasters, to identify missing persons, and for civil disputes.
• On privacy:  Setting up of such large databases is fraught with problems.For instance, the law that allowed the UK to setup a DNA database also allowed keeping data of more than one million innocent people on what was considered a criminal database.With India’s poor record on citizen privacy, the lax provisions in the draft bill are worrying.
• On reliability:There are some circumstances when even DNA data may not be reliable.
• Infrastructure bottlenecks: India is not having advance infrastructure in implementation of these laws.

Way ahead:

1. Privacy issue can be handled by adopting the best practices from the world.
2. For instance at the time of collection of DNA data, the person provide basic information. It does not set a limit to how long someone’s DNA will keep on record. In countries like UK, DNA data of a recordable offence can be kept for only six year. This can also be adopted in India for better results.
3. The Law Commissions report related to scientific collection of data need to be incorporated.
4. Maintenance of strict confidentiality with regard to keeping of records of DNA profiles and their use as recommended by Malimath report can be followed.
5. Safeguard to prevent illegal collection and use of DNA data as stated by A. P. Shah Committee.
6. Need for robust process and structure for collection of DNA samples from crime scene to the laboratory for analysis, to the DNA Bank for storage and comparison.