DNA BILL CAN BE MISUSED, FLAGS DRAFT REPORT

Focus: GS-II Governance

Why in news?

The Bill that proposes DNA sampling and profiling of citizens accused of crime or reported missing and storing their unique genetic information for administrative purposes has some alarming provisions that could be misused for caste or community-based profiling, a draft report of the parliamentary standing committee on science and technology has flagged.

Introduction

• The DNA Technology (Use and Application) Regulation Act, 2019, has been in the works for 15 years now.
• Nearly 60 countries have enacted similar legislation with the U.S. bringing in a law as far back as in 1994.

What the committee said?

Sensitive info

• The committee, in its draft report, pointed out that the DNA profiles can reveal extremely sensitive information of an individual such as pedigree, skin colour, behaviour, illness, health status and susceptibility to diseases.
• Under the provisions of the Bill, access to such intrusive information can be misused to specifically target individuals and their families with their own genetic data.
• This is particularly worrying as it could even be used to incorrectly link a particular caste/community to criminal activities.

DNA database

• The report has red-flagged disregard to an individual’s privacy and other safeguards.
• The Bill proposes to store DNA profiles of suspects, undertrials, victims and their relatives for future investigations.

While there is a good case for a DNA database of convicts, so that repeat offenders may be easily identified, there is no legal or moral justification for a database with DNA of the other categories as noted above, given the high potential for misuse.

‘Perfunctory consent’

• In the Bill, if a person is arrested for an offence that carries punishment up to seven years, investigation authorities must take the person’s written consent before taking the DNA sample.
• The Bill refers to consent in several provisions, but in each of those, a magistrate can easily override consent, thereby in effect, making consent perfunctory.
• There is also no guidance in the Bill on the grounds and reasons of when the magistrate can override consent, which could become a fatal flaw.

DNA Information retention after acquittance

• The Bill permits retention of DNA found at a crime scene in perpetuity, even if conviction of the offender has been overturned.
• The committee has urged the government to amend the provisions to ensure that if the person has been found innocent his DNA profile has to be removed immediately from the data bank.

Independent scrutiny

• The committee has recommended that independent scrutiny must be done of the proposals to destroy biological samples and remove DNA profiles from the database.
• The Bill also provides that DNA profiles for civil matters will also be stored in the data banks, but without a clear and separate index.
• The committee has questioned the necessity for storage of such DNA profiles, pointing out that this violates the fundamental right to privacy and does not serve any public purpose.

Why is the bill required?

• The Bill is urgently required as its applications would be to enable identification of missing children.
• As per the National Crime Records Bureau, annually 1,00,000 children go missing.
• The Bill will also help in identifying unidentified deceased, including disaster victims and apprehend repeat offenders for heinous crimes such as rape and murder.
• DNA testing is currently being done on an extremely limited scale in India
• The standards of the laboratories are not monitored or regulated.

DNA Technology (Use and Application) Regulation Bill, 2019

• The DNA Technology (Use and Application) Regulation Bill, also known as the DNA profiling bill, tries to check use of DNA technology to establish the identity of a person.
• According to the government, the DNA technology bill aims to establish the identity of missing persons, victims, offenders, under trials and unknown deceased persons.

Provisions

1. The Bill seeks to establish a national data bank and regional DNA data banks.
2. It envisages that every databank will maintain indices like the crime scene index, suspects’ or undertrials’ index, offenders’ index, missing persons’ index and unknown deceased persons’ index.
3. It also seeks to establish a DNA Regulatory Board. Every laboratory that analyses DNA samples to establish the identity of an individual, has to be accredited by the board.
4. The bill also proposes a written consent by individuals be obtained before collection of their DNA samples. However, consent is not required for offences with punishment of more than seven years in jail or death.
5. It also provides for the removal of DNA profiles of suspects on the 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.

Background: DNA Profiling Bill and India – Timeline

• DNA evidence was first accepted by the Indian courts in 1985, and the Department of Biotechnology established a committee known as the DNA Profiling Advisory Committee to make recommendations for the drafting of the DNA profiling bill 2006 (the draft bill was never introduced in the Parliament).
• In 2016, the Use and Regulation of DNA based technology in Civil and Criminal Proceedings, Identification of Missing Persons and Human Remains Bill was listed for introduction, consideration and passing. Activists and experts raised concerns over the 2016 version of the bill.
• In 2016, Andhra Pradesh became the first state in India to start DNA profiling to stop crimes.
• In 2018, the Law Commission of India prepared the draft bill named the DNA Based Technology (Use and Regulation) Bill 2017.

The 2017 bill

• The commission examined various judicial pronouncements and constitutional provisions and recorded that DNA profiling was indeed used for disaster victim identification, investigations of crime, identification of missing persons and human remains and also for medical research purposes.
• However, it also flagged the privacy concerns and the ethics involved in this scientific collection of data were very high.
• The commission said the procedure for DNA profiling if given statutory recognition should be done legitimately as per the constitutional provisions.

International Guidelines on DNA Profiling

• On the international platform, in the case of DNA sampling and profiling, the privacy of an individual has not only been done through human rights but also through the guidelines issued for the use and maintenance of DNA.
• The DNA Commission constituted by the International Society for Forensic Genetics (ISFG) has issued strict guidelines in this regard.
• In case of an emergency, the Forensic DNA laboratory is required to first inform the concerned officer.
• Before taking the DNA sample of an injured or the deceased person, it is necessary to seek an opinion from the person or his family.
• At the time when a person’s DNA is taken, the name of officer on duty should be clearly mentioned.
• There should be a guarantee to keep the investigation and collection private. At the same time, proper maintenance should be ensured.
• It is clearly mentioned in the ISFG’s report that to streamline the process of DNA collection, it is important to make an accurate system and report. If many agencies are collecting DNA sample, then the clarity of the number of people and correct data must be ensured.
• Besides, there are strict provisions for getting the DNA test of a missing person done from a recognised laboratory. The laboratory should have long and authentic work experience. Apart from this, it is also necessary to have a centralised electronic database to collect all DNA samples.
• All countries including India has been following these guidelines.

The Science of it: 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.
• Each nucleotide is composed of one of four chemical bases: cytosine (C), guanine (G), adenine (A), thymine (T).
• It also has a sugar called deoxyribose and a phosphate group. These nucleotides create proteins that is needed for the cell.
• DNA contains all of the information necessary to build and maintain an organism including biological information.
• Although 99.9% of human DNA sequences are the same in every person, some of the DNA is unique that makes it possible to distinguish one individual from another.
• DNA can be extracted from the saliva, hair, blood samples, any small amount of the muscles or tissues of a person, nail scraping.
• DNA’s molecular structure was first identified by James Watson and Francis Crick in 1953. They won the nobel prize for the same in 1962.
• With time, DNA technology evolved and in 1984, Bristish scientist Sir Alec John Jeffrey discovered the modern technology of DNA profiling.
• DNA Profiling is the process of determining an individual characteristic and most commonly used as a forensic technology to identify a person.

Arguments Against the Bill

• Many claim that the DNA profiling bill is a violation of human rights as it could compromise with the privacy of the individuals, that is because all the details of the person’s body and his DNA profile will be with the state. The Supreme Court has recognised the Right to Privacy as a fundamental right.
• It will be used not only in the settlement of criminal cases but also in civil matters like using DNA profiling in matters such as surrogacy, maternity or paternity check, organ transplantation and immigration.
• The International Human Rights Declaration and the 1964 Helsinki agreement are also being cited for the case against it.
• The Universal Declaration of Human Rights 1948 adopted by the United Nations General Assembly expresses concern about the rights of human beings against involuntary maltreatment.
• The Declaration of Helsinki, 1964, set the guidelines adopted by the 18th World Medical Association General Assembly. It contains 32 principles, which stress on informed consent, confidentiality of data, vulnerable population and requirement of a protocol, including the scientific reasons of the study, to be reviewed by an Ethics Committee.

Arguments in favour of the Bill

• Individual privacy is ensured as the custodian of the databank will not release any information without a formal requisition. The one who is need of the DNA process i.e. investigator has to go through a requisition process via police. Data will be accepted from the investigators which will be matched with the data available in the databank.
• The DNA pattern will be kept in the DNA bank and that will be used whenever required for any purpose in national interest, police interest or forensic interest.
• DNA profiles will be kept under a government regulatory body with certain terms and references, hence, there is a very low chance of misuse.

-Source: The Hindu