Insights into Editorial: Decoding the DNA Bill
Forensic DNA profiling is of proven value in solving cases involving offences that are categorized as affecting the human body (such as murder, rape, human trafficking, or grievous hurt), and those against property (including theft, burglary, and dacoity).
The aggregate incidence of such crimes in the country, as per the statistics of the National Crime Records Bureau (NCRB) for 2016, is in excess of 3 lakhs per year.
Of these, only a very small proportion is being subjected to DNA testing at present. It is expected that the expanded use of this technology in these categories of cases would result not only in speedier justice delivery but also in increased conviction rates, which at present is only around 30% (NCRB Statistics for 2016).
The DNA Technology (Use and Application) Regulation Bill, 2018 has been introduced in India’s Parliament, with a view to creating a national DNA database for use by the police in solving crimes and identifying missing persons.
Although DNA can be an important tool here, in solving crimes, it is important that there are safeguards to protect human rights and prevent miscarriages of justice.
Further, creating large databases is often not a cost-effective way to solve more crimes, and limited resources must be targeted effectively.
The DNA Technology (Use and Application) Regulation Bill, 2018:
Key features: The Bill seeks to provide for the regulation of use and application of DNA technology.
DNA regulation board:
- The board will certify labs authorized to carry out DNA testing and lay down procedure and guidelines for collection, storage, sharing and deletion of DNA information.
- The Secretary of the Department of Biotechnology has been made the ex-officio chairman of the proposed DNA Regulatory Board.
National DNA Data Bank: A National DNA Databank and certain regional DNA Databanks will store DNA profiles received from DNA labs in a specified format.
Limited purpose of identification: The Bill states that DNA data contained in any DNA labs and Databank “shall be used for the purpose of facilitating identification of the person and not for any other purpose”. It will only be made available to facilitate the identification of persons in criminal cases.
Safeguard against misuse: The Bill states that disclosure of DNA information to unauthorized persons, or for unauthorized purposes, shall lead to penalties upto three years in jail or up to Rs 1 lakh as fine.
The proposed legislation will enable cross-matching of DNA of persons reported missing and unidentified dead bodies and also for establishing the identity of victims during mass disasters.
It seeks to ensure that DNA test results are reliable and the data is protected from misuse or abuse in terms of people’s privacy rights.
Forensic Genetics Policy Initiative Report:
The Forensic Genetics Policy Initiative published its report, “Establishing Best Practice for Forensic DNA Databases”. A comparison with the DNA Bill reveals a number of important issues.
- First, using DNA effectively during criminal investigations requires proper crime scene examination, trained and reliable policing, a trusted chain of custody of samples, reliable analysis, and proper use of expert evidence in court.
- Without these prerequisites, a DNA database will exacerbate rather than solve problems in the criminal justice system: for example, by leading to miscarriages of justice through (false matches or misinterpretation or planting of evidence, and diverting resources) from more important priorities.
- Because many errors occur before samples get to the laboratory, the requirement for laboratory accreditation in the Bill should include quality assurance for crime scene examination.
- Consideration should be given to an independent forensic science regulator to ensure oversight of both laboratory quality assurance and crime scene examination.
- There is also a need for elimination databases for police, crime scene examiners and laboratory workers, whose DNA may contaminate the evidence they touch.
- The Bill’s proposed DNA Regulatory Board is still too powerful and insufficiently transparent or accountable.
- The Board’s responsibilities for privacy protections need an independent regulator: the easiest way to achieve this would be prior adoption of a privacy or data protection bill (which includes a role for a data protection officer).
Concerns that need to be addressed:
A number of other privacy protections are also missing from the Bill. These include the need to restrict DNA profiling so that it uses only non-coding DNA, a commonly used international standard for one, which prevents the use of parts of the DNA which code for personal characteristics, including medical conditions.
Rightly, the Bill includes provisions for the destruction of DNA samples and removal of innocent people’s DNA profiles from the database.
Any international sharing of DNA profiles should also be covered by a privacy or data protection law, and meet international human rights standards.
Activists and lawyers criticized this bill on the following grounds:
- Activists and lawyers have argued that India does not have a data protection law and that information like ancestry or susceptibility to a disease, or other genetic traits, is liable to be misused.
- It has also been argued that DNA tests have not led to an improvement in conviction rates in countries where legislations is already being followed.
Privacy issues can be handled by adopting the best practices from the world. For instance, at the time of collection of DNA data, the person provides basic information. It does not set a limit to how long someone’s DNA will keep on record.
In countries like UK, DNA data of a recordable offence can be kept for only six year. This can also be adopted in India for better results.
The Law Commissions report related to scientific collection of data need to be incorporated. Maintenance of strict confidentiality with regard to keeping of records of DNA profiles and their use as recommended by Malimath report can be followed.
Safeguard to prevent illegal collection and use of DNA data as stated by A. P. Shah Committee. Need for robust process and structure for collection of DNA samples from crime scene to the laboratory for analysis, to the DNA Bank for storage and comparison.
The important safeguards and a cost-benefit analysis are still lacking for this Bill. The Bill needs further improvement, and full parliamentary scrutiny should be utilised to achieve that end.