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Debating the DNA Bill: The Government Responds, The Wire Replies

Debating the DNA Bill: The Government Responds, The Wire Replies

This article is a rebuttal by Dr. J. Gowrishankar, Director of the Centre for DNA Fingerprinting and Diagnostics, to the piece titled ‘Modi Wants the DNA Profiling Bill Passed Right Away. Here’s Why it Shouldn’t Be‘, published on July 24, 2015. The piece’s author, Vasudevan Mukunth, replies in-line on behalf of The Wire.

[If you wish to read Dr Gowrishankar’s article without Vasudevan Mukunth’s in-line response, click here]

I am a scientist, and like others of my ilk am trained, indeed duty-bound, to present and to appreciate all sides of an argument so that the pros and cons of each can be evaluated and a consensus is reached. I am compelled, however, to strike an adversarial note in this article since it is intended as a rebuttal of the wholly one-sided criticism by Vasudevan Mukunth of the Human DNA Profiling Bill which is under consideration of the Union Government.

Mukunth calls this Bill “one of the most intrusive enactments of its kind anywhere in the world” (italics mine) with respect to privacy concerns of individuals in society, and questions the unbridled powers given to a regulatory body under the Bill, the scientific reliability of DNA profiling, as well as its visible and hidden costs.  Indeed, there is not one sentence in his article as to what the potential benefits of this Bill might be for our country, which makes one wonder whether he believes that this Government is so foolish as to attempt to enact a legislation which has no benefit at all to society at large.

Mukunth’s reply: I’m aware that there are many parts of the Bill that are well-intentioned (I’m personally excited about post-conviction DNA-testing and have mentioned it as one of the upsides of the Bill). This is why I don’t ask for the Bill to be shredded but that it be referred to a Parliamentary Standing Committee before it can be tabled.

The text of India’s Human DNA Profiling Bill is to a very large extent based on that in legislations of several other countries including USA, UK, Canada, France and Australia. To imply, therefore, that it is an “intrusive enactment” that is entirely unique is false. In fact, the experience of these other countries since their legislations were enacted (twenty years and counting, in the cases of USA and UK), with respect to the improvements in criminal justice delivery in their dominions, would indicate that this Bill has been long overdue in India.

Mukunth’s reply: The text of India’s Human DNA Profiling Bill may in large part be based on that from the USA, UK, Canada, etc., but many of the problems that the Bill could exacerbate are unique to India – such as the many privacy and accountability concerns highlighted in my article. Those parts of the Bill can’t be compared to what’s happening in the West. In fact, the USA, UK and Canada also have legislations in place that explicitly specify how the DNA profiles can be collected, the best practices for storing and indexing them, as well as who can access them, in what circumstances and how. The DNA Identification Act 1994 (USA) specifies that all federally supported DNA labs comply with operational standards for collection, storage and analysis set by the FBI. The Criminal Justice and Public Order Act 1994 does the same in the UK. The DNA Identification Act 1998 (Canada) also does the same and further requires a periodic review of itself every five years.

Briefly, the purpose of the Bill is to establish rigorous standards for and to regulate the activities of laboratories undertaking DNA profiling, to enable identification of missing children and of unidentified deceased individuals including disaster victims, to apprehend repeat offenders for heinous crimes, and to prescribe penalties for the unauthorised use of DNA samples or information. These are laudable and completely unexceptionable objectives intended to enhance the capabilities of the justice delivery system in India, whose level at present is abysmally low. The experience in the countries of the developed world has been so positive that DNA profiling is now universally regarded as setting the gold standard for all forensic investigations (including ballistics, toxicology, handwriting analysis and so on; ref: US National Academy of Sciences document).

Perceived in this light, Mukunth’s skepticism of the technology’s reliability is misplaced. He cites a few errors that have occurred in individual instances, but as the saying goes of a single swallow not making a summer, so it is that our arguments should be based on statistics, not anecdotes. And the statistics are that the use of DNA profiling, with access to stored DNA profiles in a DNA databank, has provided investigative leads in more than five hundred thousand otherwise unsolved crimes in the developed world (as obtained from the websites of FBI, USA and National DNA Data Bank of UK).

Mukunth’s reply: Yes, DNA-profiling has a fabulous track record in settling disputes. However, the drafting committee, as well as anyone interested in the Bill’s tabling, would do well to learn from the mistakes of those who have been systematically pressing DNA-profiling to the resolution of civil and criminal disputes in modern times. I am skeptical of the technique – as I’m skeptical of all techniques – so I’ve asked that the Bill be cognisant of the various statistical blips and prescribe best practices to eliminate them. As I write in my article: “This isn’t to say that a reliable [match] can never be arrived at, but only that the draft Bill does not have the commensurate depth required to identify and tackle the sort of statistically motivated mistakes in DNA profiling. In fact, it also abdicates itself from specifying any best practices for the collection, storage and analysis of DNA samples…”

Mukunth has voiced concerns on the infringement of privacy related to DNA profiles stored in the DNA Data Bank, but these are unfounded. First, the DNA profile data to be stored in the Data Bank carry no information that can be related to any individual’s traits (or phenotype).

Mukunth’s reply: The Bill doesn’t say this. As far as the draft document is concerned, the contents of the database are profiles – not identity-neutral profiles, just profiles. I respect your attitude to privacy but I only ask that it be reflected fully in the Bill as well.

More importantly, unlike a scheme such as Aadhar where data is sought to be obtained from all citizens and stored, the DNA Data Bank will store DNA profiles only of specified categories of individuals, that is, of those who are in conflict with the law.  For such categories, the law already provides for mechanisms not only to obtain and to store identifiable information (name, address, photograph, fingerprints) but also to institute searches of their personal properties and belongings with appropriate judicial warrants. The retention of their DNA profiles in the DNA Data Bank is sought to be done in order to apprehend repeat offenders and therefore to serve a larger societal good; this practice is being followed to substantial benefit in the developed world.

Mukunth’s reply: Bringing criminals to justice faster is a good aspiration to have, but it must be done not at the expense of anybody’s privacy and definitely while the government’s actions – in the form of the Board’s – are always accountable. On the question of retention: it’s understandable if you want to store the profiles of those who are repeat offenders – but why indefinitely? The law in the UK stipulates that profiles can be retained for a maximum of six years. And what’s the rationale behind storing the profiles of those who have been sentenced for life or to death?

Mukunth also advances the criticism that the DNA Profiling Board has been given discretionary powers that can be abused. Since DNA profiling is a technology that is very likely to advance and to evolve with time, it is necessary that the Board possesses some discretionary powers (albeit with sufficient checks and balances, as are already incorporated in the Bill) so that one is not obliged to resort to repeated amendments of the law. Furthermore, the Board is comprised of very senior and distinguished officers (including, for example, the Chairperson of the National Human Rights Commission) that the likelihood of an abuse of power is extremely low. Many other Acts in India, including the AICTE Act (1987), TRAI Act (1997), IRDA Act (1999), PFRDA Act (2006) and PNGRB Act (2006) provide similar discretionary powers to the appropriate Boards and Authorities.

Mukunth’s reply: Those staffing the Board may be upstanding folk but the Bill has a responsibility to account for the worst of times as well. I don’t want to have to keep a check on who’s on the Board and who’s not – I want the Bill to provide guarantees once and for all that things won’t go wrong. Please also note that the Bill is scheduled to be introduced at a time when the country’s leadership is unwilling to accept that the right to privacy is a fundamental right, at a time when the Central government insists on interfering in the management of highly regarded public institutions. I can only read the Bill’s intentions through the lens of the government that will enact and, ultimately, be responsible for enforcing it.

With respect to costs, Mukunth conflates the costs of regulation of DNA laboratories and of storage of DNA profiles in the DNA Databank with the costs of DNA profiling itself. This is akin to including the costs of operating the country’s numerous medical colleges in calculating the cost of running the Medical Council of India. Even the cost stated by him of £1 a year for storing a DNA sample in the UK is not valid, for two reasons: in India, purchasing-power-parity considerations dictate that the same activity can be done at a fraction of the UK cost (one may recall here the remarkably low cost of ISRO’s successful space missions), and furthermore the DNA Bill is concerned with storing not of DNA samples (which are materials) but of DNA profiles (which is information, in computers).

Mukunth’s reply: I have already stated that setting up the Indian database will incur a one-time cost of Rs.20 crore. And on the other hand, I would like you to explain who will pay for acquiring the DNA profiles at costs that could well run into thousands of crores. In fact, the Bill does not contain the word ‘cost’ in it and seems unconcerned about how its implementation will be funded.

Next, on the question of whether the DNA database will store the physical samples from which the profiles will be derived: Usha Ramanathan – a researcher and advocate who was a dissenting member of the Bill’s drafting committee – has revealed an email communication she had with Gowrishankar dated June 25, 2014, in which he states the following:

“On your question of destruction of DNA collected from the relatives, I wish to state that the CDFD has so far not destroyed any DNA sample received by it since its inception. These samples are being maintained in safe custody in the institute. Once again, it is my assessment that the policy on such destruction needs to be developed and evolved by the proposed DNA Profiling Board.”

As a result, could the costs could be comparable to the NDNAD in the UK?

An important but under-appreciated benefit to accrue from the Human DNA Profiling Bill is the opportunity that it provides for “post-conviction testing”, that is, for convicts to establish their innocence through DNA testing. The Innocence Project in USA has employed DNA profiling investigations to secure the release of more than three hundred individuals who had earlier been erroneously convicted on the basis of other lines of evidence.

I began this article with one exhortation as a scientist, and I end it with another. One major difficulty that we as scientists face in engaging with the public is to overcome the ignorance and the pre-ordained bias of the journalists who are the mediators in our engagement, and who have the power (which we don’t) to have their articles read by millions of the lay public. It is this unfairness which has been highlighted in the present instance, since Mukunth has chosen to publish his article with cherry-picked facts despite detailed inputs from and conversation with me earlier on the subject. One truly wishes that the conduct of our discourses is far more consensual and less adversarial.

Mukunth’s reply: I have cherry-picked facts, but never out of context (that’s the reason the article runs into 4,000 words). I still want a Human DNA Profiling Bill to be passed and agree with you that it has benefits – but it gets to them at a great cost. That’s why I’d like to repeat my statement that the Bill be referred to a Parliamentary Standing Committee, and its niggling as well as substantial issues be resolved to everyone’s satisfaction, before it’s tabled.

Note: Vasudevan Mukunth’s replies were updated on July 25, 2015, at 17.45 pm to include an email response from Usha Ramanathan revealing the CDFD does store physical samples from which the DNA profiles are derived.

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