DNA Bill must weigh concerns on privacy, undue stigmatisation

However, India must move carefully—the government must also ensure that the Bill contains provisions that effectively debar wholesale DNA profiling, of the kind that China is doing for its minorities.

The DNA Technology (Use and Application) Regulation Bill will be taken up by Parliament in the ongoing monsoon session. The Bill has had several iterations over the past 15 years, even as more than 60 nations have given the requisite legislative backing to the activities involving DNA technology—largely policing/investigative forensics—that need regulation. The standing committee of Parliament, in February 2021, had flagged many important concerns; hopefully, the Bill to be presented addresses these.

The committee had recommended that the government clarify on the apprehensions that certain communities will bear a disproportionate burden from use of such DNA profiling in the criminal justice system. While the committee didn’t recommend the deletion of the provisions relating to harvesting of DNA from ‘undertrials’ and ‘suspects’ in crimes and maintaining related data, it did flag the dangers of this. The Bill does include a consent clause in these specific cases, but there is also a provision to override these. It will amount to an invasion of bodily privacy of such individuals if they are eventually acquitted or are no longer a suspect.

Some members of the committee also flagged possible stigmatisation of specific communities—for instance, 66% of undertrials in Indian jails belong to the SC, ST, OBC communities. Criminal investigation successes based on available DNA data will continue to put the burden of perceived criminality on these communities, since crimes committed by members of other communities may not get logged as DNA-profiling success or attributed to the DNA records; in short, profiling won’t capture true prevalence for certain communities.

Another key concern—though the committee hasn’t recommended deletion of this provision—relates to the “crime scene index”, or DNA data recorded from a crime scene. Such broad-sweep DNA harvesting, as the committee had warned, will put individuals who may have no connection to a crime committed but whose DNA may be present in the crime scene into the database.

The Bill the government intends to present should factor this in. There are key concerns of privacy that need to be resolved, especially in connection with retention of data in the database. While the Supreme Court recognised the right to privacy as a fundamental right in 2017, in the Puttaswamy judgement, a strong safeguard against violation of bodily privacy, including DNA data, needs to be presented by the government, either drawing from existing laws or framing new laws. Given a lot of the data will be stored electronically, aspects of this will need to be covered under the personal data protection law, that has been hanging fire since 2019.

There can be no doubt that DNA technology is of seminal import for the criminal justice system, and not just from the perspective of solving crimes. Research from the US shows the mere existence of an offender’s DNA data in a database could have a net positive impact on recidivism. However, India must move carefully—the government must also ensure that the Bill contains provisions that effectively debar wholesale DNA profiling, of the kind that China is doing for its minorities.