For Kannada version – click here
2019 started off as a busy year for it being an election year and what not. So busy that many contentious bills were passed without a whimper of debate on most TV channels or even newspapers. On January 8th 2019, the Lok Sabha quietly passed one such bill called the DNA Technology (Use and Application) Regulation Bill, 2018 or “DNA bill”.
DNA profiling or DNA fingerprinting
Deoxyribonucleic Acid or DNA is one the building blocks of all organisms. It contains all the genetic information needed for growth, development, functioning and reproduction of all living organisms. It is translated into proteins which carry out the duties specified by the genes and ensure normal growth and functioning of all species including humans.The fact that DNA is like a blue print of an organism, once isolated, it has several applications in the field of Biomedical research, industry and agriculture. DNA can be used to determine an individual characteristics which are as unique as fingerprints. DNA profiling is a forensic technique used in criminal investigations to establish an individual identity. DNA can be isolated from blood, semen, skin, saliva or hair found at a crime scene to identify a matching DNA or an individual. In DNA profiling, a profile is created by comparing and analysing certain sections of DNA called short tandem repeats and mini-satellites, between people.
What is DNA Technology (Use and Application) Regulation Bill?
Currently, the use of DNA technology for identification of individuals is not regulated in India. The DNA Technology (Use and Application) Regulation Bill, 2018 or “DNA bill” proposes to regulate the use of DNA technology to establish the identity of persons, including offenders, victims, suspects and undertrials, in criminal and civil cases such as parentage disputes, emigration or immigration, assisted reproductive technologies and transplantation of human organs. The bill includes offences under the Indian Penal Code, 1860, as well as offences under other laws such as the Immoral Traffic (Prevention) Act, 1956, the Medical Termination of Pregnancy Act, 1971, the Protection of Civil Rights Act, 1955, and the Motor Vehicles Act, 1988. The Bill provides for establishment of a national DNA data bank and regional DNA data banks. The bill also proposes establishment of a Regulatory Board that will comprise of officers from NIA, CBI, experts in the field of biology and a member of the National Human Rights Commission.
The idea for a DNA bill was first proposed by Department of biotechnology (DBT) in 2003, when Atal Bihari Vajpayee was the prime minister. This led to formation of a DNA profiling Advisory Committee by DBT that drafted the first Human DNA Profiling bill in 2007. The bill has gone through several drafts from 2012- 2017, before it was tabled before the Lok Sabha in January 2019.
The bill that is designed on the model of similar DNA profiling laws in US and UK, has the same features minus the safeguards. Despite having gone through multiple drafts the bill has still many glaring concerns which remain unaddressed. Lets first look at the legal red flags with the bill.
Consent and dignity – The bill has no provision of consent in civil cases. Even in criminal cases in offences with punishment of more than seven years of imprisonment or death, consent is not required. There are also no safeguards against forcibly obtained, unclear or uninformed consent. A citizen’s refusal to give their consent to collection of their DNA can be overridden by a magistrate’s orders. There is also no provision to inform the accused about the purpose and consequences for DNA collection, thus overriding the dignity of individuals.
Right to privacy – While DNA can establish the identity of a person, its analysis can also reveal information related to his medical and physical characteristics, which could affect his privacy. For this reason, in many countries, DNA profiling to establish the identity of a person is done using a specific portion of the DNA that does not reveal any additional information about the individual. The Law Commission in its report on the draft Bill of 2017 also made the same recommendation. The DNA Bill fails to provide any clear mechanism to handle such additional or resultant sensitive and personal data. There is also no specifics on whether DNA profiles for civil matters will also be stored in the Data Banks.
Data retention and data protection– DNA profiles are prepared by DNA laboratories which will then share it with the DNA Data Banks. There are no specifics on removal of DNA profiles from the DNA labs once the case is closed. There also seems to be no regulation or safeguards on data security and if the data will be used further by the DNA labs.
The Personal Data Protection (PDP) Bill produced in July 2018, defines “sensitive personal data” and provides an exhaustive list of data that can be considered sensitive, including biometric data, genetic data and health data. Under the Bill, sensitive personal data has heightened parameters for collection and processing, including clear, informed, and specific consent. The DNA bill clearly overrides these concerns. Ideally it should be passed after ensuring that it is in line with the PDP Bill to give effect to the constitutional right to privacy.
Right to be forgotten– Part of an Indian citizen’s right to privacy, importantly, includes the right to be forgotten. The DNA Bill fails to provide any specific time period for which information contained in a crime scene index will be retained.
No mechanism for grievance redressal for removal of profiles– There are no provisions for removal of DNA profiles for civil matters from the Data Banks. The Bill also does not provide any mechanism for redressal of grievances in cases where the DNA profile is not removed from the data banks.
In 2016 alone, 29,75,711 crimes under various provisions the Indian Penal Code were reported. One can only guess the sheer number of DNA profiles and related information that will be collected from both criminal and specified civil cases. Not to mention the added expenditure to set up state of the art labs and infrastructure and capacity needed for storage of massive amount of data.
Along with the legal and privacy concerns, there are many practical, ethical and social problems with the bill. At first glance, the bill might look harmless and to tech obsessed Indian middle class it might look like a magic wand that will put and end to crime in India and we will all live in “Ramarajya”. Far from it..For that we need to understand the numerous other applications the DNA data has and how that much information can be misused/abused unless not regulated.
DNA has been used as a tool in biological research since the 70s. But its usage was mostly limited to microorganisms as production factories of drugs like Insulin, hormones and vaccines. Since 2000s with the advances in biotechnology and informatics, the complex genetic information can be translated into data that can be used to predict physical and medical features and understand complex human behaviour and characteristics. The fact that DNA contains all our our genetic information, even the mutations collected over generations, it is a treasure of information for population geneticists, historians, anthropologists and evolutionary scientists.
Human Genetic testing to determine ancestry and paternity disputes is already in use and is commercialised in US. In US alone, there are several companies providing direct customer genetic testing. By 2018, large DNA genealogy companies had over 18.5 million profiles. Some testing companies have been found to retain samples and results for their own use without a privacy agreement with subjects causing concerns about privacy and regulations against such companies. Now imagine the impact of such a technology when used on 1.3 billion Indian population, a population that is ethnically diverse, divided by caste, religion and class and most of them illiterate and ignorant of their rights!!
|Big Pharma giant GlaxoSmithKline, recently bought a share in an american ancestry company 23andme, thus giving it access to 4 million DNA samples to develop and approve drugs faster. This is not only illegal, its a great invasion of privacy. The pharma company profiting off naive people who only gave their DNA out of curiosity about their ancestry.|
There have already been attempts of linking genetics to white superiority. One of main pastime Indians indulge in is claiming one´s superiority over other groups be it regional, linguistic, caste or religious groups. Can one be sure that such data cannot be used to prove superiority over said identities, when in the hands of people with vested interests. Or that people wont be profiled according to their caste and religion? Or to market you drugs based on your genetic predisposition to a particular disease? The possibilities are infinite…
False positives– Though the technique of DNA profiling is quite reliable, but in a crime scene, identification can be complicated if the scene is contaminated with DNA of several people. Several labs have also shown the ease with which to fabricate or plant a DNA to a crime scene. There are still studies and cases that show that DNA testing is also prone to error. There should be proper sensitisation and training on the collection, storage and use of DNA profiles as well as the recognition and awareness of the fact that the DNA tests are not infallible and should be used as supporting evidence and not the “be all to end all” to an investigation.
It has been argued that DNA tests have not led to an improvement in conviction rates in countries where its a standard procedure. Also, we really need to think, are our court systems overburdened because of inability to identify criminals and collect evidence? Or because more often than not the rich and powerful get away and its the weak and poor who get the noose. The evidence can be manipulated, data can be forged. We have seen in sexual assault cases, where even with DNA samples, the rapist is acquitted, how is a database of millions of people going to give any justice? For a country like India, is it really worth investing time, money and resources on a technology that is still developing? There have been many instances of major security breach with AADHAR, with latest incidents of stolen AADHAR data used to delete voters from electoral rolls. In this digital age, the nexus of Big Data with surveillance is increasingly infringing on our civil liberties. Lest we are careful, it will end up as a marketing tool for the corporates and a surveillance apparatus in the hands of the state.
(to be continued)