Comparison of the Human DNA Profiling Bill 2012 with: CIS recommendations, Sub-Committee Recommendations, Expert Committee Recommendations, and the Human DNA Profiling Bill 2015

In 2013 the Expert Committee to discuss the draft Human DNA Profiling Bill was constituted by the Department of Biotechnology. The Expert Committee had constituted a Sub-Committee to modify the draft Bill in the light of invited comments/inputs from the members of the Committee

These changes were then deliberated upon by the Expert Committee. The Record Notes and Meeting Minutes of the Expert Committee and Sub-Committee can be found here. The Centre for Internet and Society was a member of the Expert Committee and sat on the Sub-Committee. In addition to input in meetings, CIS submitted a number of recommendations to the Committee. The Committee has drafted a 2015 version of the Bill and the same is to be introduced to Parliament.

Below is a comparison of 1. The 2012 Bill vs. the 2015 Bill, 2. CIS's main recommendations vs. the 2015 Bill 3. The Sub-Committee Recommendations vs.  the 2015 Bill 4.  The Expert Committee Recommendations vs. the 2015 Bill.

Introduction

• CIS Recommendation: Recognition that DNA evidence is not infallible.
• Sub-Committee Recommendation: N/A
• Expert Committee Recommendation: N/A
• 2015 Bill: No change from 2012 Bill
• CIS Recommendation:

Chapter I : Preliminary

Inclusion of an 'Objects Clause' that makes clear that (i) the principles of notice, confidentiality, collection limitation, personal autonomy, purpose limitation and data minimization must be adhered to at all times; (ii) DNA profiles merely estimate the identity of persons, they do not conclusively establish unique identity; (iii) all individuals have a right to privacy that must be continuously weighed against efforts to collect and retain DNA; (iv) centralized databases are inherently dangerous because of the volume of information that is at risk; (v) forensic DNA profiling is intended to have probative value; therefore, if there is any doubt regarding a DNA profile, it should not be received in evidence by a court; (vi) once adduced, the evidence created by a DNA profile is only corroborative and must be treated on par with other biometric evidence such as fingerprint measurements.

• Sub Committee Recommendation: The Bill will not regulate DNA research. The current draft will only regulate use of DNA for civil and criminal purposes.

• Expert Committee Recommendation: The Bill will not regulate DNA research. The current draft will only regulate use of DNA for civil and criminal purposes.
• 2015 Bill: No Change from the 2012 Bill

Chapter II : Definitions

CIS Recommendation:

• Removal of 2(1)(a) “analytical procedure”
• Removal of 2(1)(b) “audit”
• Removal of 2(1)(d) “calibration”
• Re-drafting of 2(1)(h) “DNA Data Bank”
• Re-naming of 2(1)(i) “DNA Data Bank Manager” to “National DNA Data Bank Manager”
• Re-drafting of 2(1)(j) “DNA laboratory”
• Re-drafting of 2(1)(l) “DNA Profile”
• Re-drafting of 2(1)(o) “forensic material”
• Removal of 2(1)(q) “intimate body sample”
• Removal of 2(1)(v) “non-intimate body sample”
• Removal of 2(1)(r) “intimate forensic procedure”
• Removal of 2(1)(w) “non-intimate forensic procedure”
• Removal of 2(1)(s) “known samples”
• Re-drafting of 2(1)(y) “offender”
• Removal of 2(1)(zb) “proficiency testing”
• Re-drafting of 2(1)(zi) “suspect”

• Sub-Committee Recommendation: N/A
• Expert Committee Recommendation: N/A
• 2015 Bill: No change from the 2012 Bill.

Chapter III : DNA Profiling Board

• CIS Recommendation:

1. The board should be made up of no more than five members. The Board must contain at least one ex-Judge or senior lawyer since the Board will perform the legal function of licensing and must obey the tenets of administrative law. To further multi-stakeholder interests, the Board should have an equal representation from civil society – both institutional (e.g NHRC and the State Human Rights Commissions) and non-institutional (well-regarded and experienced civil society persons). The Board should also have privacy advocates. CIS also recommended that the functions of the board be limited to: licensing, developing standards and norms, safeguarding privacy and other rights, ensuring public transparency, promoting information and debate and a few other limited functions necessary for a regulatory authority. CIS also recommended a 'duty to consult' with affected or impacted individuals, interested individuals, and the public at large.

• Sub-Committee Recommendation:

1. Reduce the DNA Profiling Board (Section 4) from 16 members to 11 members and include civil society representation on the Board.
2. Include either clause 4(f) or (g) i.e. Chief Forensic Scientist, Directorate of Forensic Science, Ministry of Home Affairs, Government of India - ex-officio Member or Director of a Central Forensic Science Laboratory to be nominated by Ministry of Home Affairs, Government of India- ex-officio Member;
3. Change clause 4(i) i.e., to replace Chairman, National Bioethics Committee of Department of Biotechnology, Government of India- ex-officio Member with Chairman, National Human Rights Commissions or his nominee.
4. Delete Members mentioned in clause 4(l) i.e. Two molecular biologists to be nominated by the Secretary, Department of Biotechnology, Ministry of Science and Technology, Government of India- Members;
5. DPB Members with potential conflict of interest in matters under consideration should recuse themselves in deliberations in respect of such matters (Section 7), and they should be liable to be removed from the Board in case they are found to have not disclosed the nature of such interest.
6. With regards to the establishment of the DNA Profiling Board (clause 3) the committee clarified that the DNA Board needs to be a body corporate
7. The functions of the Board should be redrafted with fewer functions, and these should be listed in descending order of priority to sharpen this function – namely regulate process, regulate the labs, regulate databanks.

• Expert Committee Recommendation:

1. Accepted sub-committee recommendation to reduce the Board from 16 to 11 members and the detailed changes.
2. Accepted sub-committee recommendation to include civil society on the Board.
3. Accepted sub-committee recommendation to reduce the functions of the Board.

• 2015 Bill:

1. Addition in 2015 Bill of Section 4 (b) – “Chairman, National Human Rights Commission or his nominee – ex-officio Member” (2015 Bill) Note: This change represents incorporation of CIS's recommendation, sub-committee recommendation, and expert committee recommendation.
2. Changing of Section 4 (h)  from: “Director of a State Forensic Science Laboratory to be nominated by Ministry of Home Affairs, Government of India- ex-officio Member” (2012 Bill)  to “Director cum – Chief Forensic Scientist, Directorate of Forensic  Science Services, Ministry of Home Affairs, Government of India -ex-officio Member”(2015 Bill) Note: This change represents partial incorporation of the sub-committee recommendation and expert committee recommendation.
3. Changing of Section 4 (j) from: “Director, National Accreditation Board for Testing and Calibration of Laboratories, New Delhi- ex-officio Member”; (2012 Bill) to “Director of a State Forensic Science Lab to be nominated by MHA ex-officio member” (2015 Bill)
4. Addition of section 11(4) and 11(5) “(4) The Board shall, in carrying out its functions and activities, consult with all persons and groups of persons whose rights and related interests may be affected or impacted by any DNA collection, storage, or profiling activity. (5) The Board shall, while considering any matter under its purview, co-opt or include any person, group of persons, or organisation, in its meetings and activities if it is satisfied that that person, group of persons, or organisation, has a substantial interest in the matter and that it is necessary in the public interest to allow such participation.” Note: This change represents partial incorporation of CIS's recommendation and Expert Committee recommendation.

Chapter IV : Approval of DNA Laboratories

• CIS Recommendation: N/A
• Sub-Committee Recommendation:

1. Add in section 16 1(d), the words “including audit reports”
2. Include in section 16(1)(c) that if labs do not file their audit report on an annual basis, the lab will lose approval. If the lab loses their approval - all the materials will be shifted to another lab and the data subject will be informed.

• Expert Committee Recommendation: N/A
• 2015 Bill: No change from the 2012 Bill.

Chapter V : Standards, Quality Control and Quality Assurance

• CIS Recommendation: N/A
• Sub-Committee Recommendation:

1. Section 19(2) DNA laboratory to be headed by person possessing a doctorate in a subject germane to molecular biology.
2. Clauses 20 and 30 should be merged into Clause 20 to read as:

“(1). The staff of every DNA laboratory shall possess such qualifications and experience commensurate with the job requirements as may be specified by the regulations.

(2). Every DNA laboratory shall employ such qualified technical personnel as may be specified by the regulations and technical personnel shall undergo regular training in DNA related subjects in such institutions and at such intervals as may be specified by the regulations.

(3). Head of every DNA laboratory shall ensure that laboratory personnel keep abreast of developments within the field of DNA and maintain such records on the relevant qualifications, training, skills and experience of the technical personnel employed in the laboratory as may be specified by the regulations.

Accordingly, change the Title: “Qualification, Recruitment and Training of DNA lab personnel.”

1. Require DNA labs to have in place an evidence control system (Clause 22) Note: This existed in the DNA 2012 Bill
2. Amend Clause 23(1) to read as ““Every DNA laboratory shall possess and shall follow a validation process as may be specified by the regulations.”
3. Paraphrase Clause 27 as, “Every DNA laboratory shall have audits conducted annually in accordance with the standards as may be specified by the regulations.” It was agreed that the audits of the DNA Laboratory (clause 27) do not need to be external. Note: This existed in the DNA 2012 Bill.
4. Bring sections 28-31 on infrastructure and training brought into Chapter V and thus new title of the chapter reads as “Standards, Quality Control and Quality Assurance Obligations of DNA Laboratory and Infrastructure and Training”.

• Expert Committee Recommendation: N/A
• 2015 Bill

1. Changing of Section 20 (2) from  “(2) Head of every DNA laboratory shall ensure that laboratory personnel keep abreast of developments within the field of DNA and maintain such records on the relevant qualifications, training, skills and experience of the technical personnel employed in the laboratory as may be specified by the regulations made by the Board. (2012) to Every DNA laboratory shall employ such qualified technical personnel as may be specified by the regulations and technical personnel shall undergo regular training in DNA related subjects in such institutions and at such intervals as may be specified by the regulations; (2015)”  and Addition in 2015 Bill of Section 20 (3) - “Head of every DNA laboratory shall ensure that laboratory personnel keep abreast of developments within the field of DNA profiling and maintain such records on the relevant qualifications, training, skills and experience of the technical personnel employed in the laboratory as may be specified by the regulations” (2015) Note: This is as per the Sub-Committee's recommendation.
2. Amending of  Clause 23(1) to read as ““Every DNA laboratory shall possess and shall follow a validation process as may be specified by the regulations.” Note: This is as per the Sub-Committee's recommendation.
3. Changing of section 30 from:“Every DNA laboratory shall employ such qualified technical personnel as may be specified by the regulations made by the Board and technical personnel shall undergo regular training in DNA related subjects in such institutions and at such intervals as may be specified by the regulations made by the Board.” (2012) to “Every DNA laboratory shall have installed appropriate security system and system for safety of personnel as may be specified by the regulations.”

• Sections 28-31 on infrastructure and training brought into Chapter V and thus new title of the chapter reads as “Standards, Quality Control and Quality Assurance Obligations of DNA Laboratory and Infrastructure and Training”.  Note: This is as per the Sub-Committee's recommendation.
• CIS Recommendation:

Chapter VI : DNA Data Bank

1. Removal of section 32(6) which requires the names of individuals to be connected to their profiles and recommended that DNA profiles once developed, should be anonymized and retained separate from the names of their owners.
2. Section 34(2) to be limited to containing only an offenders' index and a crime scene index
3. Removal of section 36 which allows for international dicslosures of DNA profiles of Indians.

• Sub-Committee Recommendation:

1. Amend Clause 32(1) to reads as: “The Central Government shall, by notification, establish a National DNA Data Bank”.
2. Anonymize the volunteer's database.

• Expert Committee Recommendation: N/A
• 2015 Bill: No change from 2012 Bill.

Chapter VII : Confidentiality of and access to DNA profiles, samples, and records

• CIS Recommendation:

1. Re-drafting section 39 and 40 to specify that DNA can only be used for forensic purposes and specify the manner in which DNA profiles may be received in evidence.
2. Removal of section 40
3. Removal of section 43
4. Re-dreaft section 45 as it sets out a post-conviction right related to criminal procedure and evidence. This would fundamentally alter the nature of India’s criminal justice system, which currently does not contain specific provisions for post-conviction testing rights. However, courts may re-try cases in certain narrow cases when fresh evidence is brought forth that has a nexus to the evidence upon which the person was convicted and if it can be proved that the fresh evidence was not earlier adduced due to bias. Any other fresh evidence that may be uncovered cannot prompt a new trial. Clause 45 is implicated by Article 20(2) of the Constitution of India and by 6 section 300 of the CrPC. The principle of autrefois acquit that informs section 300 of the CrPC specifically deals with exceptions to the rule against double jeopardy that permit re-trials. [See, for instance, Sangeeta Mahendrabhai Patel (2012) 7 SCC 721.]

• Sub-Committee Recommendation:

1. Amend Clause 40 (f) to read as  “-------to the concerned parties to the said civil dispute or civil matter, with the concurrence of the court and to the concerned judicial officer or authority”.Incorporated, but is now located at section 39
2. Include in Chapter VIII  additional Sections:   Clause 42A: “A person whose DNA profile has been created shall be given a copy of the DNA profile upon request”. Clause 42B: A person whose DNA profile has been created and stored shall be given information as to who has accessed his DNA profile or DNA information.

• Expert Committee: N/A
• 2015 Bill:

1. Addition of  the phrase in section 39 “with the concurrence of the court”, thus the new clause reads as:  “-------to the concerned parties to the said civil dispute or civil matter, with the concurrence of the court” and to the concerned judicial officer or authority”. Note: This as per the recommendations of the Sub-Committee.

Chapter VIII : Finance, Accounts, and Audit

• CIS Recommendation: N/A
• Sub-Committee Recommendation: N/A
• Expert Committee Recommendation: N/A
• 2015 Bill: No change from the 2012 Bill

Chapter IX : Offences and Penalties

• CIS Recommendation:

1. The law prohibits the delegation of “essential legislative functions” [In re Delhi Laws, 1951]. The creation of criminal offences must be conducted by a statute that is enacted by Parliament, and when offences are created via delegated legislation, such as Rules, the quantum of punishment must be pre-set by the parent statute.
2. Since the listing of offences for DNA profiling will directly affect the fundamental right of personal liberty, it is an undeniable fact that the identification of these offences should be subject to a democratic process of the legislature rather than be determined by the whims of the executive.

• Sub-Committee Recommendation:

1. Ensure a minimal jail term for any offence under the Act from DNA Data Banks without authorization is a period of one month (chapter 10 (53)) Note: This already existed in the 2012 Bill.
2. Add to Section 56 the phrase “… or otherwise willfully neglects any other duty cast upon him under the provisions of this Act, shall be punishable …”.

• Expert Committee: N/A
• 2015 Bill: No change from 2012 Bill
• CIS Recommendation: N/A
• Sub-Committee Recommendation: N/A
• Expert Committee Recommendation: N/A
• 2015 Bill: No change from 2012 Bill

Chapter X : Miscellaneous

Schedule

• CIS Recommendation

The creation of a list of offenses under which upon arrest under which DNA samples may lawfully be collected from the arrested person without his consent including:

1. Any offence under the Indian Penal Code, 1860 if it is listed as a cognizable offence in Part I of the First Schedule of the Code of Criminal Procedure, 1973; [Alternatively, all cognizable offences under the Indian Penal Code may be listed here]
2. Every offence punishable under the Immoral Traffic (Prevention) Act, 1956;
3. Any cognizable offence under the Indian Penal Code, 1860 that is committed by a registered medical practitioner and is not saved under section 3 of the Medical Termination of Pregnancy Act, 1971; [Note that the ITP Act does not itself create or list any offences, it only saves doctors from prosecution from IPC offences if certain conditions are met]
4. Every offence punishable under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994;
5. The offence listed under sub-section (1) of section 31 of the Protection of Women from Domestic Violence Act, 2005;
6. Every offence punishable under the Protection of Civil Rights Act, 1955;
7. Every offence punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

• Sub-Committee Recommendation: N/A
• Expert Committee Recommendation: Incorporation of CIS's recommendation to the schedule regarding instances of when DNA samples can be collected without consent.
• 2015 Bill:

1. Addition in 2015 of “Part II: List of specified offences - Any offence under the Indian Penal Code, 1860 if it is listed as a cognizable offence in Part I of the First Schedule of the Code of Criminal Procedure, 1973” (2015). Note: This represents partial incorporation of CIS's recommendation.
2. Expansion of sources of samples for DNA profiling from - “(1) Scene of occurrence or crime (2) Tissue and skeleton remains (3) Clothing and other objects (4) Already preserved body fluids and other samples” (2012) to “1. Scene of occurrence, or scene of crime 2. Tissue and skeleton remains 3. Clothing and other objects 4. Already preserved body fluids and other samples 5. Medical Examination 6. Autopsy examination 7. Exhumation” (2015)” and Deletion of “Manner of collection of samples for DNA: (1) Medical Examination (2) Autopsy examination (3) Exhumation “ (2012)