JOIN USBall in govt's court as panel backs DNA Bill with riders
When the Jammu and Kashmir Police filed a chargesheet in the Shopian fake encounter case in December 2020, they never envisaged that a panel of lawmakers will cite the case to clear a contentious legislation pending for 15 years.
DNA tests had established the identity of three innocent Rajouri youths, who were killed by an Indian Army officer and his associates in Shopian. It was a perfect case study that senior Congress leader Jairam Ramesh used to argue in favour of the draft legislation, as the Parliamentary Standing Committee on Science and Technology supported the DNA Technology (Use and Application) Regulation Bill, 2019, that seeks to regularise use of such technologies in solving crime and identifying missing persons and accident victims.
While approving the Bill, the parliamentarians, however, suggested several changes which, if adopted by the government, will drastically cut down its scope for misuse, make the regulatory system more professional and independent, and plug loopholes on privacy concerns. The key question is whether the BJP government, which enjoys a brute majority in the Lok Sabha and a visible dominance in the Rajya Sabha, will bite the bullet.
Take the contentious issue of phenotype, for instance. Currently, the DNA forensic technology permits using a maximum of 25 genetic markers to identify a person even though laboratories like Centre for DNA Fingerprinting and Diagnostics, Hyderabad use 17 markers for the task. Information on these 17 markers is good enough to establish the ‘signature profile’ of an individual without revealing anything about their behaviour, traits and disease risks.
The House panel wants this to be part of the law. It seeks to replace the existing definition of ‘DNA profile’ with a new one that reads: “DNA profile, with its grammatical variations and cognate expressions, means a phenotype-neutral DNA pattern that establishes only the genetic identity of offenders, missing persons or unknown deceased persons, and not the characteristics of an individual such as physical appearance, behaviour or health status.” This could be a potential area of conflict if the government rejects such a suggestion.
“This is something like the minimum support price, which is being practised but the government refuses to put in the law. Defining a technical term like phenotype in legal terms is a challenge that the Department of Biotechnology (which is piloting the Bill) will have to address,” Jayaraman Gowrishankar, director of the Indian Institute of Science, Education and Research, Mohali, and one of the scientists associated with the Bill from the beginning, told DH.
The panel also defined an ‘offender’ as someone who is convicted and punished with imprisonment of seven years or more, ruling out the inclusion of petty criminals in the DNA database. In addition, it suggested removal of several general purpose open-ended clauses that could be misused, and made an attempt to restrict the law to the basic purpose for which it is being drafted.
Multiple concerns
The panel observed that despite such safeguards, there were multiple concerns (raised by AIMIM’s Asaduddin Owaisi and CPI’s Binoy Viswam, who gave dissent notes) that couldn’t be wished away. The government will have to address such concerns in the final draft.
One such concern deals with the proposed ‘crime scene index’. The risk with a national data bank of crime scene DNA profiles is that it will likely include virtually everyone, since DNA is left at the ‘crime scene’ before and after the crime by several persons, who may have nothing to do with the crime being investigated. There can also be DNA of those who were nowhere near the crime scene but bodily material like hair may have been transported to the scene inadvertently by a variety of ways. Many of these DNA profiles will then find their way into the ‘crime scene index’ without the knowledge of these persons.
In its deposition before the panel, officials suggested that crime scene DNA profiles be used in the investigation and trial, but (i) should not be put in a data bank; and (ii) destroyed once the case concludes with acquittal. If there is a conviction, only the DNA profile of the convict could be included in the data bank. Notwithstanding such assurances, it remained a fundamental issue without the possibility of a consensus.
“On balance, while recommending retention of this clause as it stands, the committee hopes that the government will address the concerns raised by the critics of the very idea of a ‘crime scene index’ in the revised version of the Bill when it is re-introduced in Parliament.”
Another crucial change suggested by the panel was to do away with regional DNA data banks to further narrow down the scope of data leakage. The lawmakers support only a national-level DNA data bank and a regulatory board to set the standards of DNA testing, issue licences and ensure quality.
The role of such a board will be crucial in future when the government throws open the doors to private laboratories to offer DNA forensic services along the lines of the USA.
To make the board more independent and professional, the parliamentary committee said an experienced and independent scientist should be its chairperson instead of a government official (secretary, Department of Biotechnology in the current Bill). Also, instead of director general of the National Investigation Agency and director of the Central Bureau of Investigation or their nominees, it suggested having a retired CBI director on the board. The panel also saw no reason to have a DGP on the board. Instead, it wanted an “eminent legal person” and a “specialist in information science”.
Privacy infringement
With worries on privacy infringement hanging over the Bill, the House panel suggested that the “National Data Bank shall promptly remove the DNA profile entered as an offender within 30 days from the day that the court finds such a person not guilty”. For unidentified bodies, the information has to be deleted from the bank’s records after the person has been identified on receiving a request from the relatives or the authorities.
The Bill is vague on how the DNA profile of a person can be “expunged” as there are only two possibilities — the missing person is traced and a dead person is identified. In such a case, it is unclear how the missing person index will work. This is another area where the MPs sought more clarity.
Some of the parliamentarians argued that if the DNA data of suspects or under-trials is kept in the data bank, it might infringe on their privacy. Such data, they argued, could be used to target the minority population. While the panel recommended retaining the clauses because of the majority opinion, it observed that such concerns could not be wished away.
Nevertheless, the lawmakers supported the Bill with the proposed changes because at the moment, “DNA technology is being used for identification without any proper regulatory system” and the potential of misuse is true for any legislation; it does not mean that law-making will have to be stopped.
“Potential abuse is not an imaginary fear — but that is true of any legislation. Does it mean that we should not have legislation? The challenge before us is to have a law that will minimise potential for abuse through adequate and explicit safeguards, which has been included in the report,” Ramesh said in a letter to Owaisi.
“The ball is now in the government’s court. It has to take a call on accepting the parliamentary panel’s recommendations,” noted Gowrishankar.