In April 2022, The Ministry of Science and Technology (MST) announced the draft DNA Technology (Use and Application) Regulation Bill.
With the recent introduction of the new Digital Personal Data Privacy Bill removing differences between sensitive personal data and personal data and adding to it the nuance of only governing digital data, privacy has become a popular concern.
While stakeholders have enquired about the expansion of DNA use across the justice system, the MST has yet to confirm such plans.
DNA Technology Regulation Bill:
The Bill creates an umbrella databank for multiple purposes
It aims to set up DNA data banks across the country and DNA laboratories for testing and storing DNA profiles and use these for case resolution in crimes (primarily sexual assault).
It includes training over 20,000 investigation officers, prosecution officers, and medical professionals to collect forensic evidence in cases of sexual assault using standardised sexual assault evidence collection kits.
Preceding the draft, there was no specific legislation in India to outline the guidelines on DNA collection, storage and use in law enforcement. However, DNA evidence was covered under Section 45 of the Indian Evidence Act 1872 under ‘scientific evidence.’
The Bill has not introduced DNA evidence into the Indian legal system.
However, DNA profilingis used in law enforcement have been seen in India since Kunhiraman vs Manoj, 1991, on proof of paternity.
It aims to address the existing gap in regulating the use of biological sample evidence
It also covers offences under special laws such as The Immoral Traffic (Prevention) Act, 1956; The Medical Termination of Pregnancy Act, 1971; The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, amongst others.
Challenges of the bill:
Data bias: The Bill lists civil matters where lawful procedures can use DNA profiling.
The application areas cover controversial disputes relating to pedigree, issues pertaining to reproductive technologies, immigration or emigration, and issues relating to establishing national identity.
Enhancing discrimination against the groups it claims to protect. For example, The Immoral Traffic (Prevention) Act discriminates against transsexual people who cannot access formal employment and are thus consigned to sex work and solicitation.
Lack of privacy and dignity of individuals: The photographic forensic data is used in combination with other digitised data and lack of collection guidelines within this regulation is a concern.
DNA can reveal sensitive information used to criminalise a community and disclose information on ancestry, feeding into social discrimination.
Insecurity over DNA laboratories hosting data – biases in artificial intelligence, algorithms it monitors, and the policies that use these,
Data storage: It is unclear how the Bill intends to regulate data storage in such DNA laboratories.
Lacunae in design: Incongruity in the Bill’s understanding of DNA evidence as biological samples to further include photographic forensic samples.
The integration of photographic or video material in this legislation has created an unnecessary caveat in how this evidence can be collected, stored, and used, especially since such samples may go against privacy requirement.
Biases in law enforcement:
Much like automated policing, where crime is registered in higher numbers because of the increased surveillance and dispatch of police officers, the results of DNA database categorisation are often inaccurate due to unequal testing of certain disadvantaged communities over others.
Facial Recognition Technology (FRT) used in law enforcement also displays these biases, aside from previously mentioned privacy concerns, churning up inaccurate outcomes (in one case, 138 out of 140 faces were misidentified by an FRT)
Accuracy of DNA evidence – Lack of standardised analysis in hair, fibre and different crime scene samples can lead to wrongful convictions.
For example, fingerprint analysts often alter their conclusions on prints and identification with additional and incremental information on prints.
Issues of injustice: A single DNA profile might be mistakenly generated when samples from multiple people are combined or collected from a crime scene.
Partial profiles can match many more people than complete profiles.
Full profiles may also match a person other than the guilty individual.
These outcomes are further complicated by different rates of DNA shedding, contamination issues, investigator biases etc., all of which still need to be fully addressed by the legislation in question.
Others – DNA profiles will likely include virtually everyone since DNA is left at the crime scene before and after the crime by several persons who may not have been involved in the crime.
Suggestions:
Individual privacy – use of DNA Technology Bill should not depend on launching a personal data protection bill and, in its absence, should create further clarifications on privacy guidelines.
Reliability – In addition, to make DNA profiling more reliable, the account must be enhanced with specific guidelines to address the use of DNA technology in combination with other tools used in the justice system to avoid a future miscarriage of justice.
Role of stakeholders – The document needs to define how different stakeholders will apply the legislation in the aforementioned areas.
Role of judiciary – The Bill highlights the need for court approval in civil matters, consent of individuals in criminal investigations, and identifying missing persons.
Consent– the Bill still needs to outline the necessary consent requirements for use in civil cases, taking agency away from those who may be involved in civil disputes.
Accountability – With regard to video evidence, FRT, linkages of forensic data to surveillance systems need immediate oversight as lack of accountability can add to existing concerns on privacy.
Holistic evidence – DNA evidence can place suspects at the location of the crime; this, in isolation, is not enough to mandate their conviction. Thus, other evidence, such as geotagged evidence, mobile records etc., will be needed to approach the case holistically.
In addition, the combination of digital and biological data digitised and maintained on a database further induces privacy concerns.
Way forward:
Thus, if combined with existing data biases in law enforcement, the DNA profiling bill can contribute to data that can be misused for caste-based or community profiling in the country, especially in cases where minority groups are disproportionately criminalised.
The eventual extension of DNA profiling in other cases beyond sexual assault can be included as part of changes.
