The new DNA-profiling bill, soon to become a law, may be misused, says Olav Albuquerque
Wikipedia

Amid the din over the global support for the farmers’ agitation, a new Bill titled the ‘DNA Technology (Use and Application) Regulation Bill,’ which will soon become a law, has gone unnoticed. Courts in India accepted DNA evidence in 1985, but it was not until January 2019 that a bill on the issue was passed by the Lok Sabha, so that India joins over 60 nations which allow DNA profiling to solve crimes. In 2016, Andhra Pradesh became the first state in India to use DNA profiling for crime detection.

To simplify, deoxyribonucleic acid or DNA is the complex hereditary molecule present in all living beings. Nearly 99.9 per cent of the human DNA sequence is the same in every person. But some DNA is unique enough to identify an individual. DNA can be extracted from the saliva, hair, blood samples, or from the nail scrapings of any living or dead person. In 1984, British scientist Alex John Jeffrey discovered DNA profiling to identify a human being with 99.9 per cent accuracy.

Human DNA Profiling Bill, 2007

The initiative to draft a bill regulating the use of DNA samples in India to solve crimes began in 2003, with the department of biotechnology setting up a committee known as the DNA Profiling Advisory Committee, to initiate the drafting of the DNA Profiling Bill, 2006. This eventually became the Human DNA Profiling Bill, 2007.

The aim of the proposed law was to regulate the use of DNA technology to identify missing persons, victims, offenders, under trials and anonymous corpses. The Lok Sabha passed a similar bill in January 2019, which lapsed due to lack of support from the opposition in the Rajya Sabha. But the present law allows DNA profiling even in civil suits, such as those seeking to prove the paternity of a person. The best example was that of former Andhra governor Narayan Dutt Tiwari, whose DNA sample proved he was the father of a son out of wedlock. Incidentally, the son was later murdered by his lawyer-wife three months before this new Bill was to be introduced, in 2019.

Regulatory board

Under the new law, national and regional DNA data banks will be set up across the country to assist in forensic investigations. The new law ushers in a uniform code of practices in all laboratories involved in DNA-testing throughout the country. The DNA Regulatory Board will oversee the process and accredit all laboratories which collect DNA samples for profiling. This new technology will speed up criminal trials which drag on for decades.

The point here is that article 20 (3) of the Constitution prohibits any person accused of a crime from being a witness against himself, which does not include incriminating material seized from his possession. One can stretch this argument to include DNA samples taken from suspects without their consent because the new law permits a magistrate’s court to allow DNA extraction from suspects in crimes which carry a sentence ranging from seven years in jail to a death sentence. Consent is immaterial.

The problem is, there is a gross violation of human rights, rendering the Constitutional right to remain silent by those charged with serious crimes meaningless. The DNA samples of these alleged heinous criminals can be misused. This can be remedied, to permit court orders allowing DNA samples to be extracted only for serial offenders.

Dissent notes

Rajya Sabha MP and CPI leader Binoy Viswam and AIMIM chief and Lok Sabha MP Asaduddin Owaisi gave dissent notes to the parliamentary standing committee, voicing concern over the violation of the privacy of undertrials and their adverse impact on the marginalised and minority communities. Their fears were redressed that these DNA profiles, which were to be stored in data banks, were not for an entire population but only for convicts and suspects of heinous crimes and relatives of missing persons, so their profiles could be compared with unidentified corpses.

The Law Commission of India (LCI), in its 271st report, prepared a draft bill named the DNA Based Technology (Use and Regulation) Bill, 2017. The commission studied judgments and constitutional provisions before recording that DNA profiling was used to identify victims of natural disasters, crime investigation, identification of missing persons, human remains and also for medical research.

No 'DNA' in Constitution

But the LCI said violation of citizens’ privacy and ethics was likely if such a law was enacted, so it should be allowed only as per constitutional provisions. However, the word DNA is nowhere to be found in the Constitution. The judiciary has stretched certain articles to declare they include fundamental rights which would otherwise not be available to citizens.

This is why a suspect charged with a heinous offence such as terrorism should give their consent before a magistrate who has to warn them they are not bound to give their consent to DNA profiling. And the magistrate should also warn him that the results may be used to convict him. This would ensure he does not unwittingly incriminate himself, to protect his right against self-incrimination.

Next, the police may falsely charge those from minority groups with terrorism-related offences and collect their DNA samples which can be planted at the crime scene. This is possible because in criminal cases, the laboratory is required to return the biological sample to the investigating officer after depositing the DNA profile with the DNA data banks. In all other cases, the laboratory will destroy the sample and inform the concerned person.

Five categories

The Bill stipulates five categories under which data indices must be maintained. These include a Crime Scene Index, Suspects or Undertrials Index, Offenders Index, Missing Persons Index and Unknown Deceased Persons Index. The DNA profiles of these categories of persons will very obviously be accessible to investigating officers who are amenable to political influence.

The deterrent is, the Bill specifies penalties for offences such as disclosure of DNA information, or using DNA sample without authorisation. For instance, disclosure of DNA information will be punishable with imprisonment up to three years and fine of up to Rs 1,00,000. But these may not be sufficient to deter corrupt policemen who have been told by their political bosses to implicate innocent men in heinous offences.

The writer holds a PhD in law and is a senior journalist-cum-advocate of the Bombay high court.

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