Is profiling in India’s DNA?
Even as the Supreme Court tackles the issue of privacy as a fundamental right, the government is considering a DNA (deoxyribonucleic acid) Profiling Bill.
India will be among the last large countries to adopt a DNA profiling or fingerprinting (also called DNA typing or testing) Bill. DNA profiling is a forensic technique used to identify individuals by characteristics of their DNA. DNA profiling is different from full genome sequencing.
A typical adult has over three billion characteristics in her DNA and only about a dozen characteristics (13 to be precise) are required for a DNA profiling database. A technique called the Short Tandem Repeat (STR) analysis is most widely used in forensic analysis. Over the last 25 years, most countries have adopted a DNA fingerprinting law and have developed databases for use primarily in criminal investigation, disaster identification and forensic science.
In 1985, Alec Jeffreys, a genetic researcher at the University of Leicester in the UK, first developed DNA profiling along with Peter Gill and David Werrett of the Forensic Science Service. They used the technique to demonstrate the innocence of a man being held for the rape/murder of two girls in Leicestershire. The constabulary then undertook an investigation in which more than 5,500 local men were asked to volunteer blood or saliva samples. With a bit of luck and the newly developed DNA technique, they were finally able to uniquely identify the perpetrator of the crime—a local baker’s apprentice.
That successful conviction combined with rapid strides in DNA fingerprinting technology led to the setting up of the United Kingdom National DNA Database (NDNAD). The UK today maintains DNA profiles of nearly 7% of its citizens, representing the largest population proportion in the world. In sheer size, the largest DNA database was set up by the Federal Bureau of Investigation (FBI) in the US—the Combined DNA Index System (or Codis). The database contains more than 12 million offender profiles, more than 2.5 million arrestee profiles and 750,000 forensic profiles.
The Codis database has aided in over 350,000 investigations and produced more than 365,000 hits.
When DNA profiling is used wisely, it can bring major benefits to society—by helping to convict serious criminals, connect seemingly unrelated crimes and possibly even preventing crime. It is also particularly useful in the aftermath of a natural disaster. Concerns can arise, however, when tissue samples, genetic information and personal data are stored indefinitely on a DNA database. There are fears that the government and the police may be able to misuse this data and threaten our individual rights as well as that of our families.
The draft DNA Based Technology (Use and Regulation) Bill, 2017 permits processing of DNA samples and puts in place safeguards against the misuse of data. According to PRS Legislative Research, the key features of the draft Bill include: (i) Only for identification: DNA profiling would be undertaken exclusively for identification of a person and would not be used to extract any other information. Further, no bodily substances will be taken from a person unless consent is given for the same; (ii) DNA Profiling Board: A DNA Profiling Board will be constituted as a statutory body which will be responsible for supervising, monitoring, inspecting and assessing DNA laboratories; (iii) DNA Data Bank: The Bill proposes a National DNA Data Bank and Regional DNA Data Banks (for the states). The data banks will be responsible for storing DNA profiles received from the accredited laboratories; and (iv) Penalties: The violators of the provisions would be liable for imprisonment which may extend up to three years and includes a fine.
A version of the draft Bill had been put out nearly two years ago for public comment by an expert committee constituted by the department of biotechnology (DBT). The Law Commission responded to a request for guidance on that report and released this latest version of the draft law earlier this month for Parliamentary consideration. The Law Commission report is comprehensive and deals with the legal context within which the draft Bill is set. Given that India’s draft Bill is coming nearly two decades after most others, the Bill is very conservative and “privacy” friendly. The release of the Law Commission draft has triggered a full range of reactions.
A proposed law on DNA typing has been in the works for nearly 15 years now. It is high time India went beyond “analysis/paralysis” and accepted a working version of the law that can be shaped by law and practice.
The probabilistic nature of DNA typing cannot be an argument against its adoption, particularly given that current methods of investigation can be even less reliable. DNA typing is not meant to replace other investigative techniques but to supplement them. In jurisprudence around the world over the last two decades, it is the combined investigative probability that has weighed strongly in favour of DNA profiling. The search for a “perfect law” has kept the entire subject ambiguous and at risk of being misused. It is better to adopt a law and improve upon it than to postpone it without setting a time limit.
P.S.: “A wise man proportions his belief to the evidence,” said David Hume.
Narayan Ramachandran is chairman, InKlude Labs. Read Narayan’s Mint columns at www.livemint.com/avisiblehand
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