Insights into Editorial: Towards a genetic panopticon
Introduction:
The government’s rejection for dissent, though, makes the potential introduction of the DNA Technology (Use and Application) Regulation Bill, 2018, for consideration by the Rajya Sabha an especially discriminatory proposition.
The Bill regulates the use of DNA technology for establishing the identity of persons in respect of matters listed in a Schedule.
These include criminal matters (such as offences under the Indian Penal Code, 1860), and civil matters such as parentage disputes, emigration or immigration, and transplantation of human organs.
The DNA Technology (Use and Application) Regulation Bill, 2018:
The Bill regulates the use of DNA technology for establishing the identity of persons in respect of matters listed in a Schedule.
- The Bill establishes a National DNA Data Bank and Regional DNA Data Banks.
- Every Data Bank will maintain the following indices:
(i) crime scene index,
(ii) suspects’ or undertrials’ index,
(iii) offenders’ index,
(iv) missing persons’ index, and
(v) unknown deceased persons’ index.
- The Bill establishes a DNA Regulatory Board. Every DNA laboratory that analyses a DNA sample to establish the identity of an individual, has to be accredited by the Board.
- Written consent by individuals is required to collect DNA samples from them. Consent is not required for offences with punishment of more than seven years of imprisonment or death.
- The Bill provides for the removal of DNA profiles of suspects on filing of a police report or court order, and of undertrials on the basis of a court order.
- Profiles in the crime scene and missing persons’ index will be removed on a written request.
Benefits of DNA based technologies:
- The utility of DNA based technologies for solving crimes, and to identify missing persons, is well recognized across the world.
- By providing for the mandatory accreditation and regulation of DNA laboratories, the Bill seeks to ensure that with the proposed expanded use of this technology in the country.
- There is also the assurance that the DNA test results are reliable and the data remain protected from misuse or abuse in terms of the privacy rights of our citizens.
- Speedier justice delivery.
- Increased conviction rate.
- Bill’s provisions will enable the cross-matching between persons who have been reported missing on the one hand and unidentified dead bodies found in various parts of the country on the other, and also for establishing the identity of victims in mass disasters.
DNA Profiling in Solving Aggregate Incidence:
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).
However, there are Problems with the draft Bill:
- The Bill not only disregards the serious ethical dilemmas that are attendant to the creation of a National DNA database, but also, contrary to established wisdom, virtually treats DNA as infallible, and as a solution to the many problems that ail the criminal justice system.
- Any infringement of civil liberties, caused by an almost indiscriminate collection of DNA, is seen as a legitimate trade-off made in the interests of ensuring superior justice delivery.
- But what the Bill fatally ignores is that the disproportionality of the DNA bank that it seeks to create, and the invasiveness of its purport and reach, imposes a limitless desire for knowledge or power on the citizen.
- The proposed law, however, is not only decidedly vague on how it intends to maintain this DNA Bank, but it also conflates its objectives by allowing the collection of DNA evidence not only in aid of criminal investigations but also to aid the determination of civil disputes.
- In all other cases other than imprisonment for a term exceeding seven years, a person refusing to part with genetic material can be compelled to do so if a Magistrate has reasonable cause to believe that such evidence would help establish a person’s guilt.
- Therefore, there’s no end to the state’s power in coercing a person to part with her DNA.
Consider the consequences:
- A person wrongfully accused of a crime, say, for speeding a vehicle over permissible limits, who might have been compelled to give her genetic material may well see this evidence being used against her in an altogether different proceeding of a purely civil nature.
- Given that in India, even illegally obtained evidence is admissible in a court of law, so long as the relevance and genuineness of such material can be established.
- The Bill’s failure to place sufficient checks on the use of DNA evidence collected in breach of the law makes the process altogether more frightening.
- The Bill potentially allows DNA evidence to be used for any other purpose that may be specified through subsequent regulations, thereby according to the state a potential power to create a “genetic panopticon,”.
As a result, the state will effectively have at its disposal the ability to profile every one of its citizens.
It’s been reported previously, for instance, that the Centre for DNA Fingerprinting and Diagnostics, whose director will occupy an ex-officio place in the DNA Regulatory Board, already seeks information on a person’s caste during the collection of genetic material.
Conclusion:
To enact the law in its present form, therefore, would only add a new, menacing weapon to the state’s rapidly expanding surveillance mechanism.
We cannot allow the benefits of science and technology to be privileged over the grave risks in allowing the government untrammelled access to deeply personal and penetrating material.
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.