IS THE DNA TECHNOLOGY (USE AND REGULATION BILL) 2018: A LEGAL ADVANCEMENT ON THE COST OF OUR RIGHTS?
DNA Profiling has assumed greater importance in recent years, especially in the field of forensic science. However, the fallibility of the DNA Technology has posed some serious challenges and has raised contemplation especially upon legislations that seek to venture into it to bolster our justice system. In the same light, The DNA Technology (Use and Application) Regulation Bill, 2018, even after being passed by the Union Cabinet still remains a contentious topic for debate. Section 25 of the Bill proposes to form a National DNA Data Bank in India at the regional, state and national level which shall hold data collected from suspects, unidentified dead bodies, offenders and missing persons. This DNA data will then be profiled and stored in case of criminal offenses like sexual assault, homicide, adultery and other crimes, aiming for the conviction of criminals in crimes that are seemingly unrelated and also towards preventing crimes in general. DNA samples from certain groups of people will be collected by authorized laboratories on the orders from police stations and the courts and will be gathered in a centralized ‘database’ so as to also help in identifying the unidentified and unclaimed dead bodies or missing persons. This article attempts to dissect the various angles of the bill in the light of human rights laws and their probable violation.
An Analysis of the Bill and its perils
(I) About DNA Technology (Use and Regulation) Bill, 2018
Being conceived around 15 years ago, the objective of the Bill was to help law enforcement agencies tackle crime using DNA testing techniques. It also allowed for the use of the technique in different circumstances, such as establishing blood relations or parentage between people. Though the Bill was proposed way back in 2007, the Department of Biotechnology finally took it upon itself to draft the Bill only in 2012. Although there was a general agreement on the regulation of DNA testing, various provisions of the Bill came under scrutiny on the grounds of reliability of the technology and privacy concerns. Therefore, the government chose to renew rounds of consultation on the draft and introduced the DNA Based Technology (Use and Regulation) Bill, 2017 that allowed for DNA samples to be processed with a simultaneous promise of safeguarding any potential misuse of an individual’s data. The Bill has therefore been passed by the Union Cabinet as of 4th July, 2018.
The National DNA Data Bank as per the Bill, shall have indices from five categories, and the procured data will be classified into groups. These indices are the - suspects’ index, the offenders’ index, the crime scene index, the deceased persons’ index, and the missing persons’ index, and such other DNA indices as may be specified by the regulations made by the Board. The profiling board also has the ability to incorporate more classes, if required. The key features identified by legal experts on the newly drafted Bill are:
1) For identification purpose only- the information extracted from an individual for the DNA profiling will be exclusively utilized for identification purpose only. Furthermore, unless consent is received, no ‘bodily substance’ (as mentioned under Section 21) will be taken from any person except in some cases.
2) DNA Profiling Board- A statutory body called the DNA Profiling Board is envisaged to be set up under Section 3 of the Act which shall undertake the inspection, monitoring, supervision and assessment of the DNA laboratories. This body will be headed by a renowned molecular biologist and comprise of other members from the police cadre, the legal and biological fields along with members from related fields.
3) DNA data bank- It will be a repository of the genetic material received from accredited laboratories of all individuals. The data will be organised under the heads of offenders, missing persons, under trials, crime scene suspects and unknown deceased persons.
4) Penalty- Violators of the provisions of this Bill, under Section 45 shall be liable for a fine and an imprisonment of 3 years.
(II) A peek into the Contentious provisions of the Bill
1) Reliability of DNA profiling-
The principle issues raised are whether the DNA technology is secure and whether the proposed law sufficiently addresses the likelihood of abuse. Despite the fact that the DNA technique is the best available method for the purpose of profiling, the technology as currently employed, still makes it an unsure science. There is a possibility, however remote, that a wrong match may be produced and the major shortcoming in the Bill is its inability to account for this flaw in the technology. In fact, the 2015 draft of the Bill clearly states that DNA profiling could distinguish between any two individuals ‘without a doubt.’ The impression that these words give is that the specialists associated with drafting it have no reasons to believe that the DNA profiles would ever be misleading. In fact, something prominently missing from the report is the methodology performed on the DNA data that will be admissible as evidence in a court of law. This leaves us with various unanswered questions with regards to who can access the database, to what all areas the DNA data can be put to use and the conditions under which a record can be erased.
2) Potential misuse-
The bill, does not deeply delve towards a nuanced discussion on the possibility of what shall happen to the individuals who are discovered tampering these samples in any way. In a prominent human rights case in which five Kashmiri civilians were murdered at Pathribal in 2000, it was brought to public notice, how the DNA tests were tampered with in an attempt to dismiss the charges against the security forces involved. This draws our focus to instances where DNA results which are taken as a definitive confirmation of suggesting that a person is an accused, may leave a a person who has been wrongly matched with no tenable legal recourse. It has also been brought up that sensitive data such as genetic traits, family line or susceptibility to an infection could potentially be abused. Additionally, it has been contended that in nations where the DNA profiling technique is in use, these tests have not caused any significant change in the conviction rates and these mechanisms rather increase the chances of wrongful conviction.
· Defiance of International Conventions-
The bill appears to be in direct defiance of the International Convention for the Protection of All Persons from Enforced Disappearance which restricts the member States from using DNA Profiling for purposes other than searching for a disappeared person. India, being a signatory to the Convention is duty bound to restrict the usage of DNA profiling techniques only for the purpose of this Convention. The Convention prohibits that the information collected even for the purpose of identification of disappeared persons, including medical and genetic data, shall not be made available for any other purposes. Even if the usage is in a case of criminal proceeding or to exercise the right to obtain reparation, such information must be used only with regard to cases for disappeared persons (Article 19). Therefore, the DNA profiling Bill, seems to have an overreach to cases other than disappeared persons and hence the act is in direct contravention to the Convention and its scope.
While the DNA technology has the potential to bring forth a massive breakthrough from its entry into the criminal justice system of the country, however, it can be a double-edged sword. It is therefore imperative for us to be aware of all the advantages as well as all the perils that the DNA technology brings to the table.
The DNA-based technology and its usefulness to a legal system and the impact it has on individual rights depends on the political, social and legal environment that the technology is utilized in. DNA-based techniques can be an effective apparatus for law implementation and it is critical that a stringent procedure and structure is prescribed for the accumulation of DNA tests from a crime scene to the laboratory for investigation, and then for the comparison and storage by the DNA Bank. However, this structure needs to be completely conscious of the rights of people and cognizant of the potential abuse of the technology.
In a society where personal data is extremely privy to a person, it is imperative that the legislations developed are more coherent on the protection of an individual’s rights. The current structure of the Bill shows various improvements from the 2007 DNA Profiling draft Bill and gives us an inkling that steps are being taken in the right direction. Even though an attempt is being made to address most of the concerns that were raised in the earlier provisions of the Bill, the question of safeguarding the privacy rights of the citizens of the country still remain hazy.
With regards to security, the government should find a way to ensure the privacy of an individual and defend human rights.
This could possibly be done by constraining the extent to which the data in the DNA database is put to use. For the purpose of research, DNA tests ought to be gathered with the people’s consent and an individual must be given the right to an appeal in the case of blatant misuse of the same. For all such reasons, there is still room for an improvement in the bill. Though the society is in an ever-changing dynamic state and no bill can be said to be perfectly justified to meet the demands of the society at all points in time, it should however, try and accommodate the interests of its essential stakeholders in a just and fair manner.
Title Image source: The Hindu
This article has been by Roshni Mulchandani, who is a fourth year law student at NALSAR University. She has also been an avid writer on various Socio-Legal themes in India such as Marital Rape, Data Privacy laws in India and the Evidentiary value of DNA, etc.