The union cabinet next week is likely consider a bill to create national DNA database of all those in conflict with law including suspects and volunteers which the critics term as against the "basic tenements of the Constitution".
The bill that aims to provide legal backing to use of DNA in criminal and civil suits and was first envisaged by the last NDA government in 2003-04 is slated for introduction in the monsoon session of Parliament.
The UPA government had gone slow on the bill to address civil society concerns regarding infringement of privacy and the intention of the proposed law to provide overwhelming powers to authorities for collecting DNA samples of anyone linked with cognizable crime. The UPA governemnt in 2012 constituted a committee under Delhi High Court judge A P Shah to suggest a framework for the Right to Privacy law in view of DNA Profiling Bill of 2007 and introduction of bio-metric based Aadhaar number for each resident.
While the AP Shah committee did not negate the law for DNA Profiling, it propopsed a strong right to privacy law to protect citizen rights before such a legislation
comes into force. The government appears to be have put the privacy law in deep freeze as Attorney General Mukul Rohtagi told the Supreme Court that privacy was not
guaranteed in the Constitution and asked the court to constitute nine member bench to examine the disputed question of law and the Constitution provisions.
Amid this, the government has hurried a draft legislation that aims to create DNA database of Indians and provide standards for DNA labs that would mushroom once the law is enacted. The government in less than five months after a draft was submitted by an expert committee has got approval of the key ministries such as Home Affairs and Health for the bill that aims to further strengthen the hands of law enforcement bodies.
The DNA Profiling Bill
The bill proposes to set a national DNA database, a DNA Profiling Board and a mechanism for authorities to use the DNA profile of people. It specifies functions and duties of the board having experts and a National Human Rights Commission nominee as members and makes it accountable to Parliament.
The bill also provides powers to the DNA Profiling Board to specify the category of people apart from those in conflict with law whose DNA samples can be collected. While for those in conflict with law including accused and victims providing DNA samples would be on directions of a magistrate, for others it would be voluntary.
Collection of DNA sample of those linked with cognizable offences like murder, robbery and burglary will become mandatory while the board will have powers to stipulate in case of non-cognizable offences like traffic violation and eve-teasing.
The proposed law also provides for creating DNA Indexes for crime scene, suspects, offenders, missing person, unidentified bodies, volunteers and as specified by the board and a national DNA database under the government control. The bill also provides for DNA sample collection and preservation centres in each district of the country and that could cost about Rs 1,800 crore apart from a national digital DNA database for quick cross DNA reference.
The bill also provides forensic procedure to collect DNA samples from both men and women including their private parts and swab washing. It allows a registered medical practitioner to collect the swabs by external examination of private parts which has to be video recorded for the investigation purpose. It also says that before collecting the sample a volunteer will have to be explained what DNA sample collection means. The draft provides for creating profile of each individual whose sample has been collected on 17 genetic parameters including linkage with parents and on unlisted demographic details.
The bill provides that the DNA samples can be used in both criminal and civil cases. The police would be able to use DNA tests in a criminal case for establishing a
crime and a convict to prove his innocence. The DNA sample can be also be used in civil suits to settle parentage and property disputes. The government in 2005 had amended criminal procedure code to allow DNA testing in judicial process.
J Gowrishankar, director of Hyderabad based Centre for DNA Fingerprinting and Diagnostics (CDFD), says the proposed law will bring India at par with Western countries on crime investigation and detection. "A misconception is being created that the power to collect DNA will be with police. It will be with a magistrate," he said, while stating that the bill aims to create national standard for collection of DNA, keeping the information in a databank and regulation of DNA labs.
The scientists who had been part of the committee that drafted the bill says the DNA Profiling at national level would help in protecting society by faster crime detection, finding missing child, tracking relatives of unidentified bodies and providing those convicted to prove their innocence. "If someone's child goes missing, the parent can provide DNA sample to find the child across India," he said and added that DNA profiling could help in preventive medication by predicting possibility of diseases by genetic coding which is gaining steam in India.
On the DNA profiling misuse, Gowrishankar said, "In the West the possibility of misuse of DNA is one in half a million cases. For such a low probability we cannot trash a modern technology which every developed country has adopted". On privacy related issues, he said the bill authorises collection and data retention only on 17 pair of numbers to establish second comparison with "no connotations" with regard to individual characteristics.
He also said that authorisation for storage of profile of database was not for general public but for limited category of individuals. "The bill provides for storing of profiles for others (those not in conflict with law) only after seeking their consent," he said, adding that India's proposed law is based on similar legislations in United States, Canada, United Kingdom, Australia and European countries. The bill, he says, provides for appeals by indiviuals to examine their data and get it expunged.
Usha Ramanathan, who was member of the drafting committee, is the biggest critic of the proposed law and threatens to move Supreme Court against the government's intention to enact the DNA Profiling law. "The committee drafted the law without taking our view. I have submitted a 20 page dissent note on the dangers of DNA profiling without adequate privacy safeguards. The bill provides unhindered powers to the government to keep surveillance on individuals and misuse of DNA profiles of individuals," she told HT.
Her concern was that the bill fails to safeguard interests of those in conflict with law and gives too much powers to the DNA Profiling Board. "If the board wants it can create DNA profile of persons on basis of their religion and caste. It allows the board to use DNA profile of individuals for any purpose without any respect for their privacy. The bill also talks about preventive medicine and other benefits of DNA profiling on which experts don't agree" she said.
Claiming that the DNA profiling debate was about "scientist versus the Constitution" Ramanathan said the proposed law should limit the use of DNA profile of individuals and not expand it unlimited. The board can expand DNA Profiling to anyone it wants and there was no "sunset" clause in the bill that provides for destroying one's DNA profile, she said, describing the proposed legislation to be anti-Constitution as it fails to protect one's privacy.
"Once your DNA has been taken it will remain with the government for ever and they will have power to use it the way they want," she said, while raising concerns over safety of the database to be maintained by the board. "In US bio-metric data of about half a million people was recently hacked. That can also happen in India and the DNA data can be manipulated for committing frauds".
As both sides are providing strong arguments in and against the DNA profiling law, the civil society members want that there should be extensive public consultation and the draft bill should be referred to the standing committee for the same. The government sources said that the call on referring the bill to the standing committee will be taken once it is introduced in Parliament. The bill is likely to be considered by the Union Cabinet this week as extensive deliberations within the government are over. "Both Home and Health ministry has given its consent to the draft bill," government sources told HT.