JAMIA MILLIA ISLAMIA

FACULTY OF LAW

Assignment topic-
“DNA EVIDENCE: Brief of The DNA Technology (Use and
Application) Regulation Bill, 2018”

Na me : 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

3
293 F. 1013 (D.C. Cir. 1923).

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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 case 4, 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 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
4
M.C. 17 of 1988.
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.

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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
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.

9
Ibid.
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
July201711 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

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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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.

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

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).

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 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

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:

14
Ibid.
15
Ibid.

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  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 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

16
The DNA technology (use and application) Regulation Bill, 2018.
17
Ibid.

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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.  

         

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
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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witness against oneself. The answer can be drawn from State of Bombay Vs.
21
Kat hi kal u 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.

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
21
AIR 1961 SC 1808.
22
AIR 2010 7 SCC 263.
23
Id.

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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.

BIBLIOGRAPHY

BOOKS:

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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 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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