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DNA profiling is the most advanced medical and technological way to identify a person. The Indian government has tried to develop this technology through Acts in India but failed. The DNA Profiling Law raises many issues. It is the most divisive because it threatens people’s privacy.

The following is a brief introduction to the topic

The DNA Technology Regulation Bill[i] passed the Lok Sabha at the end of 2019. However, the Parliamentary Standing Committee had to examine it and make any necessary observations. The purpose of the law is to regulate how DNA data can be used to verify people’s identities. These profiles will then be used to guide the investigations of law enforcement authorities. This DNA profiling method is widely applicable internationally, and India should be able to access it, too, given its success elsewhere.

What is DNA?

Deoxyribonucleic Acid, or DNA, is a highly complex molecule containing the information needed to create and maintain a living organism. All living organisms have DNA in their cell. The total DNA of multicellular organisms is found in nearly every cell.

But DNA is not only the component that defines the structure and functions of living organisms; it’s also the essential part of hereditary inheritance. When an organism reproduces, it passes a small piece of its DNA to the progeny.

It is possible to maintain continuity by passing on a part or all of the DNA from one generation to another while allowing minor differences to contribute to life’s diversity.

DNA Profiling

British scientist Alec Jeffreys developed the current DNA Profiling Technique in 1985. DNA profiling is a technique that can be used to identify a person. It’s also known as DNA fingerprinting.

DNA profiling allows you to identify someone by obtaining biological samples such as skin, hair, blood, saliva, and other bodily fluids. Each cell of our body contains DNA. If a piece is taken, it can be used to extract the DNA from any person. You have unique DNA, so if you take a sample, it will create a DNA profile that is specific to you.

DNA Technology Regulation Bill (2019): Authorities established

In the draft legislation, both a DNA Profiling Board and a national DNA database are mentioned. The National DNA Databank aims to collect information about criminals, suspects, and missing persons, as well as unexplained remains. The National DNA Databank must be responsible for DNA profiling, archiving, and other duties.

The accused or suspects must also have access to these data. The National DNA Databank (DNA Profiling Bank) aims to achieve this. The DNA Profiling Board is responsible for developing DNA Profiling regulations and rules.

This Board will be the decision-making body that creates norms and regulations for DNA profiling procedures. This Board’s other job is to certify laboratories and banks. The draft provision also required establishing this body at the state and federal levels. This Bill had many positive aspects and benefits, but we couldn’t pass it. Now let’s consider why we decided not to pass this Bill as an Act.

Critique of DNA Technology Bill (2019)

There are many areas for improvement or ambiguities in the current draft bill. The proposed law does not include specific provisions supporting Genetic Databases, Profiling Boards, or banks. How these Data Banks and Boards would be organized has yet to be discovered.

The Bill could be used for caste-based profiling. In addition, DNA profiling can reveal many other private details about an individual, such as their skin color, behavior, illnesses, etc. Unfortunately, this sensitive information could be misused to create multiple profiles of the same person if it falls into the wrong hands.

This could also link criminal activity with a particular caste or cultural group. Based on the profile data, it would appear that criminal behavior is widespread among this group. This knowledge could lead to taboos and stigmas towards certain castes or groups, which is harmful to the integration of society.

It is morally acceptable to profile a criminal convicted of a crime, but it’s not okay to profile suspects, victims, or their families. It can be difficult to profile a victim or criminal under trial, as it would violate their rights.

To comply with the law, the person creating the profile must provide written consent. However, this consent only serves as a formality since the Magistrate can reject their decision if they refuse.

It is still being determined how long the police can keep the DNA samples collected at the crime scene. The database could fall into the wrong hands. The right to privacy – fundamental human freedom guaranteed to everyone under Article 21 – has also been violated.

Judicial Pronouncements

The court determined that the term self-incrimination is used to describe the disclosure of specific information that the person who provides it knows, rather than the routine process of presenting records to the court that can shed light on issues but do not contain any claims by the accused that are based upon his knowledge. [ii]

The Supreme Court ruled that the two premises of the case fully articulated the limits of “testimonial compulsion.” Second, the restriction envisaged by Article 20(3) is getting closer as “individual testimonies” are often oral or written reports expressing specific information regarding a person concerning crucial facts. [iii]

The Supreme Court, weighing the importance of DNA tests against the time it takes to administer equity, concluded that in this case, the court must only exercise its carefulness if the interests of the parties are carefully considered and balanced. The conflict is evident between a person’s right to be shielded from clinical examinations and the court’s duty to determine the truth. [iv]

The conclusion of the article is:

The misuse of DNA profiling can reveal the personalities of people. If not protected, this information could be used by malicious individuals to compromise the privacy of the individual.

DNA Technology Regulation Bill (2019) [PRS India Org]

State of Bombay V. Kathikalu Oghad and Ors 1962 (AIR SCR (3) 10)

Smt. Selvi & Ors. State of Karnataka AIR 2010, SC 1974

Bhabani Jena v. Secretary of the Orissa State Commission for Women, (2010) 8 SCC 633