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Curtailing Fundamental Right

DNA Legislation–the Road to Hell

Raman Swamy

The road to hell is often paved with good intensions. That is what makes the proposed new law on DNA fascinating and even frightening.

Aimed at strengthening forensic investigations in the country, it was called the DNA Technology Regulation Bill, 2018. Unfortunately, it did not get the scrutiny it deserved even though an all-too-brief debate did flag certain serious lacunae. Because of the stormy atmosphere in Parliament regarding other politically more potent issues, the DNA legislation was introduced and hastily rushed through in the Lok Sabha at the fag end of the winter session.

A handful of knowledgeable Opposition members did raise profound questions pertaining to the use and possible misuse by authorities empowered by law to determine innocence and guilt on the basis of DNA sampling and profiling.

On his part, Minister of Science and Technology Harsh Vardhan, who moved the Bill, focused mainly on the positive aspects. Such a law is needed, he said, for regulating the use of DNA technology for establishing the identity of offenders, victims, suspects and undertrials. The consent of individuals would be sought, he assured, when DNA profiling is used in criminal investigations and identifying missing persons. The technology would be used not only to establish the identity of persons in criminal cases but also in civil matters like parentage disputes, immigration and human organ transplants. A National DNA Data Bank and various Regional DNA Data Banks would be set up, and that each Data Bank would maintain indices like the Crime Scene Index, Suspects' or Under-trials' Index and Offenders' Index.

Opposition members acknowledged that DNA is a useful forensic tool but they also voiced apprehensions about the potential for misuse and pointed to glaring shortcomings in the provisions of the draft law that required further scrutiny and tightening. Indeed there were dozens of pertinent points that were raised during the debate which were answered by the Minister only cursorily due to the paucity of time.

Ostensibly, the new DNA law aims at strengthening the justice delivery system by using DNA to identify certain categories of people such as criminals, missing persons, unidentified bodies and so on who, otherwise, might be wrongly identified or remain unidentified.

This sounds like an attractive proposition. But the devil lies in the details. As some MPs pointed out, all too often legislation enacted under the guise of being a panacea turns into a Frankenstein monster. For instance, draconian laws in the name of counter-terrorism; and the exploitation of Aadhaar number by private entities in the name of fixing subsidy leaks. The new DNA law too has been brought forward in the name of improving forensic investigation, but in reality, could erode the Fundamental Right to Privacy and enable the creation of a Big Brother State.

The power to take DNA samples itself could violate the Right to Privacy —hence a very robust data protection law is vitally important. In order to restrict any Government from going too far the international standard in DNA profiling is restricted in the Non-Coding Region. However, there was no such limitation in the Government's Bill.

It is the Coding Region of DNA that contains the genes that enables determination of biological characteristics unique to the individual. But there is not enough proven research on the Non-Coding Region to arrive at incontrovertible conclusions.

It is a matter of concern that the Bill fails to impose a restriction on the exact information to be extracted to create the DNA profile in each of these indices. For instance, the Unidentified Deceased Person's Index may require just the physical reconstruction of the person, unlike a Crime Scene Index where two different DNA samples may have to be matched.

By failing to impose restrictions on the Region of the DNA that can be used for testing and by failing to limit the information that the DNA profile may contain, the Bill will make a large number of people susceptible to profiling based on their skin colour, disabilities, medical conditions and so on.

These profiles can be misused for surveillance but also by private sources for making profits and even for perpetrating crimes. This concern is apparent in the Schedule of the Bill where the Government wants to create DNA profiles for issues relating to pedigree, emigration and immigration.

Moreover, control of the DNA of citizens will create a power imbalance between the Government and the people—especially in the case of a Government like the incumbent one that demands unquestioning obedience unlike a democratic set up where governments exist to serve the people.

Yet another concern is the absence of a specific data protection legislation and the lack of additional privacy safeguards. The Minister merely spoke of laying down standards for "effective consent". This is not a legal term. There is no clearly stated provision for notice to the individual whose DNA is to be collected, revocation and deletion in relation to an individual's rights over the DNA samples and DNA profiles.

The consent requirement in the Bill is superficial—the word "consent" was left undefined. This would allow for uninformed and ambiguous consent to be obtained, likely even through coercion or after the collection and usage of the DNA. The possibility of "presumed consent" is also very likely.

Again, there is no provision to inform an individual about the details of the collection or usage of his or her DNA. As one MP put it, 'You can go for a haircut, they can pick up your hair sample from the barber and they will not have to tell you'.

Nor is there any provision for the revocation of DNA samples or profiles even by those who volunteered for it. Instead, it permits unlimited retention of DNA of volunteers, including victims, in the Data Bank.

This is extended to the DNA collected from a volunteer to identify a missing person even when the law of the land itself presumes that the missing person is dead if he or she is missing for seven years. In that circumstance, can an individual's DNA be retained indefinitely?

According to the Minister, "adequate safeguards" have been provided for by setting up a DNA Regulatory Board to ensure compliance to privacy standards by Investigating Officers, by DNA Laboratories and by DNA Data Banks.

But the irony is that the members of the DNA Regulatory Board are the heads of Investigative Agencies, DNA Laboratories and DNA Data Banks. In other words, the regulators will be regulating themselves. These are the very people that the Regulatory Board should be trying to control.

Yet another murky loophole is in relation to the DNA collected from the body of the person. If DNA is collected from the scene of the crime, clothing, other objects or any other source without strict safeguards, the dangers are self-evident. The DNA Laboratories can collect DNA samples from anywhere they please, and claim it is from the scene of the crime.

There is also no clear regulation of any kind relating to the storage of a person's DNA samples. In the absence of a prohibition to store or the obligation to destroy, the DNA Laboratories can create their own Data Banks without any Government oversight. Anybody can have a person's DNA stored in a laboratory without his or her knowledge.

An absurdity is that an innocent person, who, probably, has no idea that his DNA is even in the DNA Data Bank, is entitled to request the National DNA Data Bank to remove his or her DNA from it. Otherwise, it will remain there for eternity. If you do not know that your DNA is in the DNA Data Bank, how will you ask for it to be removed?

DNA samples can also get mixed up with the collection of the samples of the Investigative Officer. This is an obvious problem. Other countries have anticipated it and solutions have been explored. There is the notion of an "elimination index" where the DNA samples of all the investigating agents will be collected and will be eliminated from any investigation. That should be specifically laid down in Indian law too.

Due to the misconception surrounding the infallibility of DNA samples, courts will invariably rely on DNA evidence in arriving at judicial verdicts. Hence it all the more important to ensure that there is a trusted chain of custody of samples, reliable analysis and proper use of expert evidence in court. Otherwise, in the absence of clear-cut provisions, there could be grave miscarriages of criminal justice.

At another level, perhaps the strangest aspect of the hasty new legislation are the cost estimates, which grossly underestimate the amount required for implementation.

The financial memorandum of the Bill estimates non-recurring expenses at Rs 20 crore and recurring expenses at Rs 5 crore annually for the establishment of everything—the DNA Regulatory Board, National DNA Databank and Regional DNA databanks and states that there shall be no other expenditure beyond this.

The reality is that to set up one DNA databank in the UK, for example, it costs Rs 3000 crore. How can it be Rs 20 crore to set up a bank of a equivalent quality in India? It makes no sense. The Government is asking Parliament to authorise something that may cost 50 times more than that.

The fact is that the cost of creating just one of the indices, the Suspect or Undertrial Index for India, according to the data of the Centre for DNA Fingerprinting and Diagnostics, would cost Rs 1800 crore.

There were many more areas of concern. But time was short, the Parliament session was coming to an end, there were many other important legislations on the schedule and hence the DNA Bill was passed without incorporating even the most valid amendments and without referring to a Standing Committee for closer evaluation and rectification. ooo

15-02-2019

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Frontier
Vol. 51, No.34, Feb 24 - Mar 2, 2019