The Parliamentary Standing Committee to which the government sent its draft DNA Bill 2019 for further review submitted its report to the Lok Sabha and Rajya Sabha on February 3, 2021.
The Parliamentary Standing Committee on Science and Technology, Environment, Forests and Climate Change is chaired by Jairam Ramesh, and has 10 members from the Rajya Sabha and 31 from the Lok Sabha.
The report emphasised three parts of the Bill and recommended remedial or complementary measures for the government to consider. These measures are concerned with (a) the Bill being able to create and sustain an “ecosystem that benefits from scientific evidence” and helps courts “appreciate” the importance of DNA evidence”; (b) to develop a culture of using scientific evidence when appropriate and together with the right procedures; and (c) to prevent at the outset government misuse of the technology to target specific sections of society.
This technology is basically DNA fingerprinting. The human DNA contains certain gene segments that are highly specific to each individual and can’t be found in a similar combination in another individual (except in some cases, like family members and bone-marrow transplant recipients). So these segments are together called a person’s DNA fingerprints.
Say a forensic investigator finds clothing material at a crime scene and extracts an unknown person’s DNA from it. They can sequence this DNA, identify the gene segments and compare them to a database of known repeat-offenders. If there is a match, the offender in question could be deemed to have used the clothing and be tied to the crime, notwithstanding other evidence to the contrary.
Some of the committee’s more important recommendations are centred on ensuring the group of people tasked with maintaining the DNA database are independent of the government, that the Bill respects the right to privacy, that the right people are in charge of discharging duties related to the Bill, and finally that the Bill doesn’t grant sweeping powers that could potentially lead to government officials misusing its sensitive data.
The Department of Biotechnology (DBT) drafted the DNA Technology (Use and Application) Regulation Bill in 2003. It was finally tabled in Lok Sabha after multiple rounds of discussion and ministerial feedback in 2019 – only for the general elections that year to dissolve the government and lapse the Bill. When government resumed, the Bill was deferred to the standing committee in October 2019. The committee submitted its report yesterday.
Until 2016 or so, the principal concerns with the Bill were that it did not sufficiently restrict the permissions of various authorities interacting with the central databank of DNA fingerprints to access this sensitive data and use it as they wished. The Wire published a significant report on this subject in 2015.
The committee’s report makes the following salient recommendations:
* Some members expressed concerns with the DNA databank containing fingerprints of suspects and ‘under-trials in addition to ‘victims’, offenders, missing persons and unknown deceased persons. This said, the majority view was that all groups should be included. (Chairperson Ramesh was in the minority.)
* Since crime scenes could potentially include the DNA from people who could have visited the same location before and after a crime, bundling all their DNA into the databank may be reckless. The committee determined that all this DNA be used in the course of police investigation and subsequent trial. Finally, only if there is a conviction should the convicted person’s DNA alone be inducted into the databank. The recommendation itself is that the government should address this concerns when the Bill is reintroduced in parliament.
* A national databank will suffice and the government should consider deleting the words “or a regional DNA databank” from the draft Bill.
* The committee recommended that “testing” should be replaced in the draft text with “profiling” to make it clear that the databank will contain only the outcomes of DNA profiling exercises, and not all DNA tests.
* The Bill’s understanding of a medical practitioner should be updated to be according to the National Medical Commission Act 2019, and not according to the Indian Medical Council Act 1956, as it is currently.
* “The bodily substances of relatives of the missing persons” may be “taken with the written consent of such relatives” – the ‘written consent’ bit is currently missing.
* The committee recommended that, according to the DNA databank, an offender should be any person who has been “convicted of an offence” and is to be imprisoned for at least seven years or has been sentenced to death.
* The Bill should limit itself to DNA profiling for potential inclusion of data in the databank, and shouldn’t seek to regulate DNA testing for any other purposes.
* DNA laboratories are only required to share DNA profiles, and not the results of any other DNA tests, with the national databank, and once they have done so the laboratories should destroy all local copies of the profiles.
* The committee recommended that the Bill remove the cost cap of Rs 25,000 per DNA profiling exercise, and asked that the regulatory board issue price notifications from time to time.
* Where a magistrate’s order is necessary to obtain the DNA profile of a person, the magistrate ought to grant the grant concerned parties a hearing and then direct the authorities accordingly based on a reasoned order. The concerned parties in this case could be, say, people who haven’t been convicted of any crimes but their DNA is required to eliminate their presence at a crime scene, or if a person younger than 18 years volunteers their profile to help look for a missing relative but their parent/guardian doesn’t consent.
However, retired Supreme Court judge Madan B. Lokur, who discussed multiple issues with the current version of the Bill in a long note appended to the committee’s report, also raised a problem on this point: that the Bill does not provide for an appellate process in case a party is dissatisfied with the magistrate’s order.
* The Bill shouldn’t claim that a person’s DNA can be obtained from a skin impression: the corresponding technology doesn’t exist.
* If a defendant at a trial is able to convince the court that a DNA sample could be contaminated, the sample should be reexamined by a different laboratory than the one that processed it first. (The text currently doesn’t say so explicitly.)
* The government must address concerns about holding the DNA profiles of under-trial people in the databank. But the Bill can retain the corresponding clause itself.
* The director of the national DNA databank should be trained in and have experience with information technology instead of the biological sciences, since the bank is fundamentally a database and doesn’t perform any analysis of its own.
* “Any information relating to a person’s DNA profile contained in the suspects’ index or under-trials’ index or offenders’ index of the DNA Data Bank shall be communicated only to the authorised persons” – and the offender, the committee recommended.
* If the director of the databank receives a DNA profile from a foreign government or institution, she may only communicate whether or not there is a match; if there is a match, she may share details of the matching profile according to the Indian government’s instructions. She is not allowed to share any other details, including of incomplete “similarities” between profiles.
* The databank should remove an under-trial person’s DNA profile within 30 days of a court finding them to not be guilty.
* The committee recommended that the words “wilfully” and “knowingly and internationally” be dropped from clauses specifying penalties for unauthorised disclosure of information contained in the DNA databank.
* Contrary to the Bill’s current specification, the government can’t amend the Schedule to the Bill – which “sets out the various uses for DNA evidence” – without “parliamentary scrutiny and debate”.
* The committee recommended deleting a big chunk of clauses – under 59(2) – because they are vague.
Another important set of recommendations is concerned with the composition of the DNA regulatory board. The committee’s changes are summarised in the table below:
Finally, two members of the committee shared notes dissenting with the majority decision: Lok Sabha MP from Hyderabad Asaduddin Owaisi and Rajya Sabha member Binoy Viswam, of the Communist Party of India. Both of them expressed concerns with some portions of the Bill that appear to grant sweeping power to its users and to overstate the potential for DNA evidence to resolve pending disputes.
Particular sticking points include the extent to which the Bill respects the right to privacy, specifications to limit the DNA databank’s misuse to prosecute minorities in India and collecting DNA data for anything more than what is necessary to ascertain a person’s unique identity.
Justice Lokur also voiced concern on this point, writing:
“Clause 33 of the present Bill states that ‘All DNA data, including DNA profiles, DNA samples and records thereof, contained in any DNA laboratory and DNA Data Bank shall be used only for the purposes of facilitating identification of the person and not for any other purpose.’ While this may appear mandatory, it is really directory in nature since there is no penalty for violating the prohibition, rendering it toothless. Further, there is no anti-discrimination clause in the Bill which would emphasise protection against targeting of any ethnic, racial or other group or community.”
Based on the committee’s deliberations, the DBT has also said that the form accompanying the receipt of a sample from a person will remove the ‘caste’ field. The DBT clarified that the field had been included because different sub-populations in India have a slightly different genetic makeup. As a result, if a particular segment of genes is expressed differently in their DNA, it could be a sub-population-level feature instead of an abnormality. According to the DBT, the form will replace ‘caste’ with ‘population’ instead.
The full report is available to read here.