Another violation of 'right to privacy'? Law Commission proposes DNA profiling

The debate over the 'right to privacy' is set to intensify, as the Law Commission of India (LCI) has opened up another Pandora's Box.

In a draft Bill, titled the 'DNA-Based Technology (Use and Regulation) Bill, 2017', the LCI has proposed human DNA profiling, and proposed to set up Central as well as state-level statutory bodies for the same.

In its 271st report submitted to the Government of India on 26 July 2017, the LCI stated that sections 53A and 54 were added to the Criminal Procedure Code (CrPC) to govern the collection of “all bodily fluids and other biological samples from suspects” and also “provided for DNA profiling”.

Earlier attempt

An earlier attempt to bring in a legislation came under criticism, as it intruded into the privacy of a citizen.

The genesis of this could be traced back to 2014, when a public interest litigation (PIL) by an NGO, Lokniti Foundation, sought a direction that India should have a national DNA database.

At this, the Department of Biotechnology came up with the 'Use and Regulation of DNA-based Technology in Civil and Criminal Proceedings, Identification of Missing Persons and Human Remains Bill'. However, it went into limbo as the matter was referred to the LCI.

But now, the LCI has come out with this draft Bill, contending that countries all over the world, even small ones like Trinidad and Tobago, have come out with legislations to govern the use of DNA profiling.

What purpose would it serve?

Initially, DNA profiling was aimed at data collection on maternity or paternity disputes. issues relating to pedigree, surrogacy and immigration/emigration.

In this regard, one may recollect the case of Rohit Shekhar, the biological son of former UP and Uttarakhand Chief Minister ND Tiwari, in the Delhi High Court.

It may also be recalled here that BJP leader Subramanian Swamy had called for the DNA test for all Muslims in India, so that it could be established that they were all Hindus.

However, now the LCI draft Bill provides for a mechanism which “permits processing of DNA samples” and “which would not violate any way the privacy of a person” and “which will never go beyond identification of a particular person”.

The mechanism should also eliminate the “apprehension of revealing genetic traits”, it states.

Salient features of the Bill

- Formation of a statutory body called the DNA Profiling Board, “which 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 would also advise on all ethical and human rights issues relating to DNA testing in consonance with international guidelines”.

- There shall be a National DNA Data Bank, and regional DNA Data Banks for the states, to be established by the Central government.

- Strict confidentiality is to be maintained with respect to the use of DNA profiles, and “anyone causing a breach of the same shall liable for punishment of imprisonment, which may extend up to three years and also fine which may extend up to Rs 2 lakh”.

- Sharing of DNA profiles, with and by foreign governments or government organisations or government institutions or any of its agencies, can be done for the purpose of this Act.

- DNA experts may be specified as “Government Scientific Experts and be notified as such under clause (g) of sub-section (4) of section 293 of the Code of Criminal Procedure”.

- An undertrial can request the court for another DNA test to be conducted, if it is found that the previous samples were contaminated, and hence had become unreliable.

What about safeguards?

Interestingly, the Union government recently told a bench of the Supreme Court headed by Justicea Dipak Misra, the Chief Justice of India-designate, that it was in the process of bringing in a human DNA profiling Bill, which would only enable authorities to maintain records of unidentified and unclaimed dead bodies and missing persons.

The LCI now cites the examples of nations like the USA, the United Kingdom, Canada, China and others to buttress the point that such a legislation is necessary in India also.

In USA, the Federal Bureau of Investigation (FBI), in the early 1990s, designed the Combined DNA Index System (CODIS), “with the purpose of amalgamating forensic sciences and computer technology into an effectual apparatus for solving serious crimes”, according to one of the preambles of the draft Bill. But it does not elaborate the safeguards it provides for the 'privacy' of a citizen.

In India, the forensic science examination of a crime scene involves DNA experts also. However, it remains to be seen whether such labs now would be established throughout the country, and if so, whether every citizen would be subject to a DNA test and data collected, as has been done in the case of Aadhaar cards.