The identity puzzle: DNA Bill: 

The identity puzzle: DNA Bill: 

Context:

•   The Law Commission of India submitted a draft of the DNA Based Technology (Use and Regulation) Bill, 2017 to the government earlier in the year.
• ‘The DNA Based Technology (Use and Regulation) Bill, 2017’ was prepared after examining various judicial pronouncements and constitutional provisions.
• The exercise was initiated by the Commission after the Department of Biotechnology forwarded its draft of ‘The Use and Regulation of DNA based Technology in Civil and Criminal Proceedings, Identification of Missing Persons and Human Remains Bill, 2016’ in September last year.

What is DNA profiling?   

• DNA profiling, (also called DNA fingerprinting, DNA testing, or DNA typing) is the process of determining an individual’s’ DNA characteristics, called a DNA profile that is very likely to be different in unrelated individuals, thereby being as unique to individuals as are fingerprints.
• Developed by Professor of Genetics Sir Alec Jeffreys, the process begins with a sample of an individual’s DNA (typically called a “reference sample”).
• A common method of collecting a reference sample is the use of a buccal swab, which is easy, non-invasive and cheap. When this is not available (e.g. because a court order is needed but not obtainable) other methods may need to be used to collect a sample of blood, saliva, or other appropriate fluid or tissue from personal items (e.g. a toothbrush, razor) or from stored samples (e.g. banked sperm or biopsy tissue).
• Samples obtained from blood relatives (related by birth, not marriage) can provide an indication of an individual’s profile, as could human remains that had been previously profiled.
• A reference sample is then analyzed to create the individual’s DNA profile using one of a number of techniques.. The modern form of DNA profiling, also known as STR (short tandem repeats) analysis, is a technique which requires only a limited quantity of bodily substances for analysis.
• The DNA profile is then compared against another sample to determine whether there is a genetic match

Uses of DNA profiling:

• DNA profiling is most commonly used as a forensic technique in criminal investigations to identify an unidentified person or whose identity needs to be confirmed, or to place a person at a crime scene or to eliminate a person from consideration.
•  DNA profiling has also been used to help clarify paternity, in immigration disputes in parentage testing and in genealogical research or medical research. Only a small sample of cells is needed for DNA fingerprinting. A drop of blood or the root of a hair contains enough DNA for testing.
•  DNA fingerprinting has also been used in the study of animal and floral populations and in the fields of zoology, botany, and agriculture.
• DNA profiling is used for disaster victim identification, investigation of crimes, identification of missing persons and human remains and for medical research purposes.

Key features of the Bill:

•  DNA Profiling: The DNA Bill seeks to regulate human DNA profiling and establish standards procedures for DNA testing.
• DNA Board: The bill provides for the setting up of statutory DNA Profiling Board to spell out procedures and standards to establish DNA laboratories.
•   For Investigation purpose: The draft bill has modified the earlier Bill and suggested various measures to fortify the use of uncontaminated DNA samples for investigation purposes and for identifying missing persons.
•  The DNA profiles shall be shared with and by foreign governments or government organisations or agencies only for the purposes enumerated in the Act.
•   Penalty: Violators of the provisions will be liable for punishment of imprisonment which may extend up to three years and also a fine which may extend up to ₹2 lakh.
• DNA Data Bank : It provides for the creation of DNA data banks, at national and regional levels, which would be responsible for storing DNA profiles received from the accredited laboratories.
• Crime scenes figures: They will also be responsible for maintaining certain indices, like crime scene  index, suspects index, offender’s index, missing person’s index and unknown deceased person’s index.
•   DNA experts would be notified as government scientific experts.
•  Proper identification of missing persons: With a view to assist the kith and kin of missing persons, provisions have been made for proper identification of missing persons on the basis of their bodily samples/substances.
•  Right to under trials: The Bill gives the right to an under trial to request for another DNA test in case of doubts that his earlier samples may have been contaminated.

DNA profiling Vs Right to Privacy:

• Serious concerns have been raised regarding various provisions of the bill ranging from its reliability to its potential for misuse and errors.
• Among others, right to privacy is one of the important concerns of this bill.
• These concerns are discussed as below:
• There are many concerns raised by human right activists over the impact of such a bill:
• Social Misuse: The bill mentions pedigree inclusion that could be used for racial and communal profiling. It might also lead to the stigma of ‘genes of criminality’
• Political Misuse: It mentions the profiling of ‘suspects’ along with the ‘convicts’ which could be misused though errant testing and conviction. It also has an loosely defined column of ‘volunteer’.
• Violation of Privacy: It will involve taking ‘intimate samples’ and examination of private parts which would invade person’s right to privacy.
• Longer judicial delays: Legal luminaries point out that since this bill will also be applicable to civil matters, it will further increase the judicial delays as DNA profiling is a cumbersome process and India’s infrastructure is lacking in this field.
• The bill does not guarantee that data will not be used for anything other than specified purpose. Its proposal to constitute a national DNA databank for forensic and non-forensic purposes could be misused if not accompanied strong privacy laws.
• Other than criminal investigation, bill allows use of data for non-forensic purposes such as to identify victims of accidents or disasters, to identify missing persons, and for civil disputes. The objection is that this data could be used by state for surveillance over its citizens, thus making them vulnerable..
• Other loopholes involved:
• 1-  The imminent possibility of contamination of previous samples.
• 2-  Need for professionally qualified manpower.
• 3-  No special provisions in respect of funding of the Board and how the required funds will be made available to the investigating agencies .
• 4-Did not specifically provide as to on what stage the samples could be collected.
• 5-  No proper procedure to obtain consent and also under which volunteer can withdraw his data. That before giving the data to a third party, the person must be notified and consent must be sought.
• 6-  Bodies collecting, analyzing, and storing DNA data should be made to release an annual report, detailing their practices and organisational structure.
• 7-    DNA is not foolproof false matches can take place for multiple reasons.

Recent Judgment of Supreme Court on Right to Privacy:

1. The SC’s  recently held that the “Right to Privacy is an integral part of the Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution”
2. From now on, ‘Right to Privacy’ is a fundamental right

What will be the functions of DNA profiling board?

• The profiling board will undertake functions such as laying down procedures and standards to establish DNA laboratories and granting accreditation to such laboratories, and advising the concerned Ministries/ departments of the Central and State governments on issues relating to DNA laboratories.
•  It will be responsible for supervising, monitoring, inspecting and assessing the      laboratories.
• The Board will frame guidelines for training the police and other investigating agencies dealing with DNA-related matters.
• Its functions also include giving advice on all ethical and human rights issues relating to DNA testing in consonance with international guidelines.
• It will recommend research and development activities in DNA testing and related issues.
• DNA profiling will be undertaken exclusively to identify a person and will not be used to extract any other information.

DNA Data bank:

•  The Bill has also recommended the setting up of a DNA data bank both nationally and on a regional basis in the States.
•  The data bank will primarily store DNA profiles received from the accredited laboratories and maintain certain indices for various categories of data such as crime scene index, suspects index, offenders index, missing persons’ index and unknown deceased persons’ index with a view to assisting families of missing persons on the basis of their bodily samples and substances.
• Strict confidentiality will be maintained with regard to keeping records of DNA profiles and their use.

Way ahead:

•  The procedure of DNA profiling if given statutory recognition, should be as per the constitutional provisions.
• The implications of creating regional and national level DNA Database need to be fully understood.
•   Need for a robost process and structure for collection of DNA samples from crime scenes.
•   Enactment of comprehensive privacy policy in India.