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Insights into Editorial: Collection of DNA samples will lead to misuse

 

evidence

 

Context:

Allowing investigating agencies to collect DNA samples from “suspects” as laid down in the DNA Technology (Use and Application) Regulation Bill 2019.

This bill will give them “unbridled power that is easily capable of misuse and abuse” and amount to a “threat to the life, liberty, dignity and privacy of a person” retired Supreme Court judge Justice Madan Lokur has observed in a written submission to the Parliamentary Standing Committee on Science and Technology.

 

Report tabled:

  1. The panel, headed by Jairam Ramesh, tabled its report in Parliament. DNA testing is currently being done on an extremely limited scale in India, with approximately 30-40 DNA experts in 15-18 laboratories undertaking less than 3000 cases a year. The standards of the laboratories are not monitored or regulated.
  2. The Bill aims to introduce the regulation of the entire process from collection to storage.
  3. The preamble of the bill says that it aims to provide for “the regulation of use and application of Deoxyribonucleic Acid [DNA] technology for the purposes of establishing the identity of certain categories of persons including the victims, offenders, suspects, undertrials, missing persons and unknown deceased persons.”
  4. Justice Lokur has questioned the need to collect DNA of a “suspect”.
  5. In his submission, he has argued that in a blind crime or a crime involving a large number of persons (such as a riot) everybody is suspect, without any real basis.
  6. Which will mean that thousands of persons can be subjected to DNA profiling on a mere suspicion.
  7. Such an unbridled power is easily capable of misuse and abuse by targeting innocents, against whom there is not a shred of evidence.
  8. Such an unbridled police power ought not to be conferred on anybody or any agency as it would amount to a threat to the life, liberty, dignity and privacy of a person.

 

The DNA Technology (Use and Application) Regulation Bill – 2019:

The purpose of this Bill is to expand the application of DNA-based forensic technologies to support and strengthen the justice delivery system of the country.

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 this country.

There is also the assurance that the DNA test results are reliable, and furthermore that the data remain protected from misuse or abuse in terms of the privacy rights of our citizens.

 

The key components mentioned in this Bill include:

Establishment of a DNA Regulatory Board; accreditation of DNA laboratories undertaking DNA testing, analysing, etc.

Establishment of the National and Regional DNA Data Banks, as envisaged in the Bill, will assist in forensic investigations.

This will aid in scientific up-gradation and streamlining of the DNA testing activities in the country with appropriate inputs from the DNA Regulatory Board which would be set up for the purpose.

The Bill will add value in empowering the criminal justice delivery system by enabling the application of DNA evidence, which is considered the gold standard in crime investigations.

 

Benefits of DNA Profiling:

Deoxyribonucleic acid, commonly known as DNA, is the hereditary complex molecule present in humans and almost all other organisms.

Nearly every cell in a multicellular organism possesses the full set of DNA required for that organism.

Most DNA molecules consist of two bio polymer strands coiled around each other to form a double helix. The two strands are called polynucleotides since they are composed of simpler monomeric units called nucleotides.

  1. Through DNA profiling technique, heinous crimes can be easily solved.
  2. It can also help to nab criminals. DNA profiles taken from the place of crime can be matched with the samples of criminals arrested even after several years.
  3. This technique is very effective in identifying accident victims, missing people or identifying disaster victims.
  4. The identification of parents is also possible with the use of the DNA profiling.

 

Following of DNA Profiling procedure in Other Countries:

Over 60 countries have made legal provisions for the use of DNA technology to investigate criminal cases.

These countries include Argentina, United States, China, Britain and Canada.

DNA Profiling is allowed only in serious criminal cases in the Netherlands, Germany, France and Austria.

This provision also exists in India. By taking prior permission from the court, biological samples of suspects in criminal cases can be taken for DNA profiling.

 

Panel members’ apprehension:

  1. Many members of the committee too had expressed concern over including “suspects” in this list, flagging that it could lead to misuse and targeting certain categories of people.
  2. In two dissent notes, critics have said the bill will lead to targeting of Muslims, Dalits and Adivasis.
  3. The committee has said that while taking on board these concerns, it has gone with the majority view of retaining the preamble.
    1. Its report, however, notes that these fears are not entirely unfounded and have to be recognised and addressed by the government and by Parliament as well.
    2. At the same time, the committee has observed that it does not negate the need for such legislation especially when DNA technology was in use.
  4. The report has said “In fact, its use in recent months has exposed a false encounter in which innocents were killed contradicting initial claims made that they were militants”.
  5. Recently, it has pointed to the last encounter at Shopian in Kashmir, where the Army had killed three men claiming to be unidentified terrorists.
  6. The DNA sample from the three dead men matched with their families, confirming it to be a fake encounter.
  7. Justice Lokur has stated that the provisions of the bill can lead to targeting of select groupings, including social, linguistic, religious and other minorities on the ground of being suspects.
  8. He has also pointed to other clauses of concern, including not creating separate data banks for civil and criminal matters.
  9. This will result in a presumption against the person, even though they have not consented to giving their DNA sample for use in the criminal investigation.

 

Conclusion:

There is also no guidance in the Bill on the grounds and reasons when the magistrate can override consent, which could become a fatal flaw.

Therefore, in the absence of a robust data protection legislation, the security of a huge number of DNA profiles that will be placed with the National DNA Data bank and its regional centres becomes questionable.

The government, on the other hand, has been arguing that since DNA tests are already happening, and frequently used as the most reliable tool to establish identity, it would be better to have regulatory safeguards so that it is carried out only in prescribed manner and by authorised personnel and institutions.

The government has also claimed that very limited information is proposed to be stored in the indices just 17 sets of numbers out of billions that DNA samples can reveal. These can tell nothing about the individual except to act as a unique identifier.