The DNA Bill is riddled with a host of problems, both legal and procedural. It should be subjected to further policy analysis and legislative scrutiny before being enacted into law.
The Lok Sabha passed the DNA Technology (Use and Application) Regulation Bill, 2018 on January 8. In this post, I will explain the key principles that govern the Bill, and identify a host of problems that need immediate redressal, before the Rajya Sabha takes it up.
A version of the draft ‘Human DNA Profiling Bill’ was put out in 2015 by an expert committee constituted by the department of biotechnology (DBT), for public comments. The Bill was then sent for review to the Law Commission, which released its report of the draft law in 2017 for Parliamentary consideration. The Law Commission report had extensively amended the previous version of the Bill, and had taken into consideration the various public and legal debates on privacy.
So what is DNA profiling? DNA profiles are encrypted sets of numbers that reflect a person’s DNA makeup. DNA profiling is a technique employed by forensic scientists to assist in the identification of individuals on the basis of their respective DNA profiles. The term is also known as DNA testing, DNA typing, or genetic fingerprinting. DNA profiling is currently being legally used in criminal investigations in almost 60 countries, across the globe.
The proposed legislation declares a law to regulate the use, retention and expunction of DNA samples (i.e. of bodily substances) to establish identity of certain people including the victims, offenders, suspects, under trials, unknown deceased people et al.
The Bill creates an institution at the helm, called The DNA Regulatory Board. It will facilitate and assist the Central Government and State governments in establishing: a) DNA Data Banks and b) DNA laboratories.
The DNA Data Bank, both at the National level and at the State level each, will act as the repository of all the DNA Profiles received from the DNA Labs. It is entrusted with maintaining DNA profiles against their respective indices viz. the Crime Scene Index, Suspects’ Index, Undertrials’ Index, Offenders’ Index, Missing Persons’ index and Unknown deceased persons’ Index.
The DNA Labs will receive the DNA Samples and undertake DNA testing under the set standards and procedures for quality control in respect of collection, storage, testing and analysis of DNA sample and in turn share the DNA data with the National as well as State DNA Data Banks.
The Bill has envisaged prior consent as a necessary pre-requisite for collecting DNA sample only in criminal investigations, but not for civil matters. Provisions have also been made for maintenance of strict confidentiality with regard to keeping of records of DNA profiles and their use. As is often applied in medical treatment, the idea of “informed consent” revolves around ensuring that the person giving the consent is fully aware of the pros and cons of the medical treatment. For a convict or an undertrial to give his/her approval to DNA profiling, he/she should be informed in detail what it entails, without which it cannot be regarded as ‘consent’. The legislation is weak on this aspect. The Bill also fails to provide safeguards against forcibly obtained, unclear or uninformed consent.
The Forensic Genetics Policy Initiative published its report, “Establishing Best Practice for Forensic DNA Databases”, in 2017 that highlighted that effective use of DNA in criminal investigation requires reliable crime scene examination and analysis, without which a DNA database might exacerbate the problems plaguing the criminal justice system. Insufficient safeguards in data protection could lead to false matches or planting of evidence, thereby complicating than assisting delivery of justice.
The Law Commission in 2012, had also observed that one of the reasons for low conviction rates in India is the poor quality of investigation by police. This Bill is trying to address this gap by exhorting the DNA Regulatory Board to frame guidelines and procedures for training of police and other personnel dealing with DNA in the course of their investigations. But this should simultaneously be carried out with the long-pending police reforms in India, so as to empower and develop the functioning capacity of the police personnel.
Section 54 (c) in the Bill is loosely worded which allows the Central Government to ‘supersede’ the DNA Board by a mere notification. This could be misused to increase the mandate of the Bill to the entire population. Here we are reminded of how the “function-creep” of Aadhaar extended its use and application beyond originally decided sectors. From being a voluntary scheme to access Government subsidies and benefits, the Aadhaar transformed into a mandatory identification tool through the Aadhaar Act for even accessing banking and mobile phone services. One can only hope that the DNA Bill is not taken down the same path.
Here we must note that penalties have been imposed for unauthorized disclosure of information from DNA Data Banks. Penalties have also been imposed for destruction, alteration, contamination and tampering of biological evidence.
The DNA Bill provides for the expunction of DNA profiles of suspects and undertrials but is silent on expunction of DNA profile of missing/unknown persons and those acquitted. While the bill provides for expunction of DNA profile, it has no provision for destruction of the samples collected. The Bill should provide for such destruction of samples as soon as the profile is extracted.
The Bill also lacks an important feature which could compromise individual data privacy. The standard global practice of processing DNA samples is through non-coding parts of the DNA that is only used for identification of a particular person, and eliminates revelation of genetic traits. This practice was also emphasized in the Law Commission Report on the draft bill. The Bill passed in the Lok Sabha, however, finds no mention of the same.
Further, in light of the recent controversies with regards to Cambridge Analytica, and the decision of the Supreme Court in Puttaswamy I (right to privacy judgment), provisions ensuring data privacy and data protection should be further strengthened. The genome holds the entire hereditary code, it can also highlight potential hereditary health problems someone might experience, such as a predisposition to heart disease or a specific type of cancer, which can be misused/ traded by non-state actors for profiteering.
One of the biggest limitations of the DNA testing technique and the bill, in particular, is the over-reliance on DNA results. Although DNA testing is widely accepted as a corroborative method, it cannot be relied on as the sole basis of conviction, as there could be stray instances of false positives. The Bill has therefore ensured a section (Clause 24) in the bill, allowing for a DNA re-test, if the under-trial satisfies the court that the previous DNA sample/bodily substance stood contaminated.
In conclusion, the bill needs further improvement and should, therefore, go through thorough further parliamentary scrutiny before it is enacted into law.
Nidhi Tambi is the Public Policy and Government Relations Manager at Piramal Sarvajal. She is an SOAS postgraduate in Development Studies and a former LAMP fellow.
Image credits: Civilserviceindia.