In the din of Vyapam, boycotts and demands for resignations, the just-concluded monsoon session of Parliament did not see the tabling of the Human DNA profiling bill, 2015.
Deoxyribonucleic acid, or DNA, carries most of the genetic instructions used in the functioning and reproduction of all living beings. Hence, an individual’s DNA can provide insights into his or her parentage, familial matrixes, medical history, race, ethnicity and a whole gamut of identity markers.
Popular culture, especially television crime shows, and the 2015 bill believe that DNA is the ultimate truth. The reality is otherwise.
The 2015 bill wrongly believes that DNA ‘establishes the biological relationship, if any, between two individuals, living or dead, without any doubt’.
It states that the ‘DNA found at the scene of the crime, of the victim or the offender will be used to establish identity’. The bill is wrong in assuming that DNA establishes the biological relationship ‘without doubt’.
Usha Ramanathan, who was on the committee to vet the 2012 version of the DNA bill, writes about the challenges of DNA profiling. These include false hits, cross-contaminating samples, mislabelling samples, misrepresenting test results, typing errors and intentionally planting DNA.
Ramanathan writes about a few RTI requests that reveal instances of error due to mislabelling samples.
There is also the possibility of simply jumping to wrong conclusions. The DNA recovered from a crime scene need not belong to the offender or accused.
Instead, it might belong to an unrelated party present, before or after the crime.
In early June this year, the Washington Post reported that the US’s Federal Bureau of Investigation (FBI) had notified crime labs that it had discovered errors in the data used by forensic experts in thousands of cases ‘to calculate the chances that the DNA found at a crime scene matches a particular person’.
This pertained to the FBI’s 13-million DNA profile database. According to the Washington Post, the FBI, due to the discovery of errors, was transitioning from 13 or more specific locations on chromosomes test, called 13 loci, to 20 loci. In a sample study conducted by the FBI on 1,100 profiles, 33 had errors.
Similarly, the British Home Office has reported that between 2001 and 2006, 27.6% of the matches from their database were to more than one person.
These multiple-match cases arose largely due to the crime-scene profiles being partial in nature. This points to two important aspects about DNA profiling.
First, like all science, it depends on methodology and interpretation. Second, due to human handling, there can be errors, intentional and unintentional. Therefore, the extraction of DNA, securing systems to store the samples, and the weight attached to DNA evidence must be carefully calibrated to take these imperfections into account.
The 2015 bill does the opposite. It expands the potential extraction pool to include every Indian.
The bill provides that every DNA Data Bank shall maintain DNA from seven categories of sources: a crime scene index, a suspects index, an offenders index, a missing persons index, unknown deceased persons index, a volunteers index and, rather ambiguously, ‘such other DNA indices as may be specified by regulations’.
The bill states that the DNA data bank manager, the person who administers the Bank, shall have the powers to not only compare DNA profiles but also ‘communicate for the purposes of investigation or prosecution in a criminal offence’ the DNA-related information to a ‘court, tribunal, law enforcement agency or DNA laboratory in India’.
Therefore, non-judicial, non-medical, non-forensic personnel will take the decision to share one’s genetic information, with or without reasonable cause, and minus any mediation by the Code of Criminal Procedure, 1973 (CrPC).
By excluding these invasions of our person from the protections of the CrPC, the new bill removes the checks that the law has traditionally afforded.
Our legal system has always allowed for an ‘examination of the human body’.
For instance, Sections 53 and 53A of the CrPC allow for such examination (including DNA profiling) if there are ‘reasonable grounds’ for believing that such ‘examination’ of a person who is ‘arrested’ will afford evidence on the commission of an offence.
However, the request must be made by a police officer and the examination must be conducted by a registered medical practitioner. Similarly, Section 53A of the CrPC allows for the examination of one arrested for rape.
What is clear from both provisions is that there are safeguards including reasonable grounds for the examination — the person should be arrested, and finally, the examination must be conducted by a registered medical practitioner.
The 2015 bill has none of these checks.
Meanwhile, as an offender, one’s DNA gets into the database and it will be retained permanently.
Upon acquittal one needs to send a certified copy of the order to the data bank manager to get the record expunged.
Most troubling is that the bill provides that the DNA profiles will be made available for identification in criminal cases during judicial proceedings to enable decisions in criminal prosecution for the defence of the accused and, rather strangely, ‘for the creation and maintenance of a population statistics Data Bank that is to be used … in identification research, protocol development or quality control...’.
As if this were not enough, the DNA information can also be used for ‘any other purposes’ as may be prescribed.
The idea that the State can assemble a population data base, not simply a census but a blood history of its citizens, so as to enable identification research or even quality control, is anathema to a constitutional, democratic India.
This bill, when worked in tandem with the Aadhar regime, has the potential to profile, rather intimately, every Indian.
In fact, this bill reads like very bad science fiction, one in which the State runs amok and bad science leads to little truth, many lies and an abuse of our DNA.
Menaka Guruswamy is a Supreme Court lawyer
The views expressed are personal