DNA Bill can be misused, flags draft report
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The Bill that proposes DNA sampling and profiling of citizens accused of crime or reported missing and storing their unique genetic information for administrative purposes has some alarming provisions that could be misused for caste or community-based profiling, a draft report of the Parliamentary Standing Committee on Science and Technology has flagged.
- The committee, headed by Congress leader Jairam Ramesh, met on Monday, but for want of quorum, the draft report, which has been circulated among the members, was not finalised.
- The DNA Technology (Use and Application) Regulation Bill, 2019, has been in the works for 15 years now. Nearly 60 countries have enacted similar legislation, with the U.S. bringing in a law as far back as in 1994.
- The committee, in its draft report, pointed out that DNA profiles can reveal extremely sensitive information of an individual such as pedigree, skin colour, behaviour, illness, health status and susceptibility to diseases.
- “Under the provisions of the Bill, access to such intrusive information can be misused to specifically target individuals and their families with their own genetic data. This is particularly worrying as it could even be used to incorrectly link a particular caste/community to criminal activities,” the report noted.
- The report also red-flagged disregard to an individual’s privacy and other safeguards. The Bill proposes to store DNA profiles of suspects, undertrials, victims and their relatives for future investigations. “While there is a good case for a DNA database of convicts, so that repeat offenders may be easily identified, there is no legal or moral justification for a database with DNA of the other categories as noted above, given the high potential for misuse,” the report noted.
- In the Bill, if a person is arrested for an offence that carries punishment up to seven years, investigation authorities must take the person’s written consent before taking the DNA sample. But this consent is only “perfunctory”, the report said.
About DNA Technology(Use and Application) Regulation Bill, 2019
The DNA Technology(Use and Application) Regulation Bill, 2019 was introduced in Lok Sabha by the Minister for Science and Technology, Mr. Harsh Vardhan, on July 8, 2019. The Bill provides for the regulation of use of DNA technology for establishing the identity of certain persons. Note that the same Bill had been previously introduced in Lok Sabha in August 2018, but lapsed.
Provisions of the Bill
- Use of DNA Data: Under the Bill, DNA testing is allowed only in respect of matters listed in the Schedule to the Bill. These include offences under the Indian Penal Code, 1860, and for civil matters such as paternity suits. Further, the Schedule includes DNA testing for matters related to establishment of individual identity.
- Collection of DNA: While preparing a DNA profile, bodily substances of persons may be collected by the investigating authorities. Authorities are required to obtain consent for collection in certain situations. For arrested persons, authorities are required to obtain written consent if the offence carries a punishment of up to seven years. If the offence carries more than seven years of imprisonment or death, consent is not required. Further, if the person is a victim, or relative of a missing person, or a minor or disabled person, the authorities are required to obtain the written consent of such victim, or relative, or parent or guardian of the minor or disabled person. If consent is not given in these cases, the authorities can approach a Magistrate who may order the taking of bodily substances of such persons.
- DNA Data Bank: The Bill provides for the establishment of a National DNA Data Bank and Regional DNA Data Banks, for every state, or two or more states. DNA laboratories are required to share DNA data prepared by them with the National and Regional DNA Data Banks. Every Data Bank will be required to maintain indices for the following categories of data: (i) a crime scene index, (ii) a suspects’ or undertrials’ index, (iii) an offenders’ index, (iv) a missing persons’ index, and (v) an unknown deceased persons’ index.
- Removal of DNA profiles: The Bill states that the criteria for entry, retention, or removal of the DNA profile will be specified by regulations. However, the Bill provides for removal of the DNA profiles of the following persons: (i) of a suspect if a police report is filed or court order given, (ii) of an undertrial if a court order is given, and (iii) on written request, for persons who are not a suspect, offender or undertrial, from the crime scene or missing persons’ index.
- DNA Regulatory Board: The Bill provides for the establishment of a DNA Regulatory Board, which will supervise the DNA Data Banks and DNA laboratories. The Secretary, Department of Biotechnology, will be the ex officio Chairperson of the Board. The Board will comprise additional members including: (i) experts in the field of biological sciences, and (ii) Director General of the National Investigation Agency and the Director of the Central Bureau of Investigation.
- Functions of the Board: The functions of the Board include: (i) advising governments on all issues related to establishing DNA laboratories or Data Banks, and (ii) granting accreditation to DNA laboratories. Further, the Board is required to ensure that all information relating to DNA profiles with the Data Banks, laboratories, and other persons are kept confidential.
- DNA laboratories: Any laboratory undertaking DNA testing is required to obtain accreditation from the Board. The Board may revoke the accreditation for reasons including, failure to: (i) undertake DNA testing, or (ii) comply with the conditions attached to the accreditation. If the accreditation is revoked, an appeal will lie before the central government or any other authority notified by the central government. Further, every DNA laboratory is required to follow standards for quality assurance in collection, storing, and analysis of DNA samples. After depositing the DNA profile for criminal cases, the laboratory is required to return the biological sample to the investigating officer. In all other cases, the sample must be destroyed.
- Offences: The Bill specifies penalties for various offences, including: (i) for disclosure of DNA information, or (ii) using DNA sample without authorization. For instance, disclosure of DNA information will be punishable with imprisonment of up to three years and fine of up to one lakh rupees.
DNA Profiling in Other Countries
- Over 60 countries have made legal provisions for the use of DNA technology to investigate criminal cases. These countries include Argentina, United States, China, Britain and Canada.
- DNA Profiling is allowed only in serious criminal cases in the Netherlands, Germany, France and Austria. This provision also exists in India. By taking prior permission from the court, biological samples of suspects in criminal cases can be taken for DNA profiling.
Arguments Against the Bill
- Many claim that the DNA profiling bill is a violation of human rights as it could compromise with the privacy of the individuals, that is because all the details of the person’s body and his DNA profile will be with the state. The Supreme Court has recognised the Right to Privacy as a fundamental right.
- It will be used not only in the settlement of criminal cases but also in civil matters like using DNA profiling in matters such as surrogacy, maternity or paternity check, organ transplantation and immigration.
- The International Human Rights Declaration and the 1964 Helsinki agreement are also being cited for the case against it.
- The Universal Declaration of Human Rights 1948 adopted by the United Nations General Assembly expresses concern about the rights of human beings against involuntary maltreatment.
- The Declaration of Helsinki, 1964, set the guidelines adopted by the 18th World Medical Association General Assembly. It contains 32 principles, which stress on informed consent, confidentiality of data, vulnerable population and requirement of a protocol, including the scientific reasons of the study, to be reviewed by an Ethics Committee.
Arguments in favour of the Bill
- Individual privacy is ensured as the custodian of the databank will not release any information without a formal requisition. The one who is need of the DNA process i.e. investigator has to go through a requisition process via police. Data will be accepted from the investigators which will be matched with the data available in the databank.
- The DNA pattern will be kept in the DNA bank and that will be used whenever required for any purpose in national interest, police interest or forensic interest.
- DNA profiles will be kept under a government regulatory body with certain terms and references. There are a least chances of any misuse.