HUMAN DNA PROFILING IN INDIA- PRIVACY ISSUES

INTRODUCTION

The development of science and technology has opened new avenues for human race but at the same time has posted ethical questions evolving around the issue of privacy, human right and right against self-incrimination and permissible use which remains to be answered. The discovery of DNA was one of the most landmark achievements of human kind. The development of DNA technique has contributed significantly to various fields in fast growing countries like Argentina, Canada, United States of America, China and United Kingdom and Scotland. These countries are using the DNA profiling for the purpose of ascertainment of identity either in criminal trial or in cases of disaster identification verification.  DNA test in the investigation in the criminal cases is not unknown to India, even prior to the amendment of Cr. P.C. the prosecution was authorize to ask for DNA test in the criminal cases to make case full proof.[1] Section 53-A of the Cr.P.C. has recognized the examination of accused and collection of DNA sample in rape cases in India.  Though the criminal procedure and evidence law in India authorize the collection of sample for DNA, but remain totally silent on some peculiar questions like how this test is going to be conducted, what standard do the test agency is going to follow and how this property or data is going to be administered as DNA profiling is highly vulnerable to the issue of privacy.  Since 2003 the government is trying to respond these questions through legislative measure and draft bill of the DNA profiling has been created. The draft has undergone into several change at last the law commission of India in its recent report[2] has laid down guidelines for regulation of DNA in its DNA Based Technology (Use and Regulation) Bill, 2017. Undisputedly profiling of DNA will immensely help in the administration of justice. At the same time issues regarding privacy and human rights violation should not be left unaddressed.

DNA profiling (also called DNA fingerprinting, DNA testing, or DNA typing) is a forensic technique used to identify individuals by characteristics of their DNA. Prior, to DNA profiling law enforcement agencies were have to heavily rely on finger prints which can be easily obfuscated and hardly left behind.[3] In this article the author will analyse nuances of DNA profiling as per Draft of DNA Bases Technology (Use and Regulation) Bill 2017. Author will examine the sanctity of the DNA profiling by scrutinizing the constitutional, human rights and privacy issues surrounded the right to life and liberty. Present research paper is divided into the four parts, Part-I dealing with the introduction of the present issue in the hand, Part-II discuss about DNA profiling meaning and methodology, it also enlist the legal position of DNA profiling in India by referring to the provisions of Cr.P.C., Evidence Act and provisions of the bill of 2017. In Part-III of the paper authors argued the challenges to the DNA profiling from Indian Constitution, Universal Declaration of Human Rights etc. Part-IV deals with the conclusion and suggestion where the authors advocate for the accountable, limited use of DNA profiling in India for specified crime with the permission of court with an object to balance it with constitutional values.

 

  1. DNA Profiling Meaning and Methodology:

Broadly DNA saga started to begin in early 1800 as scientist find out the presence of nucleus in the human cell. Human body is composed of approximately 100 trillion cells, and has about two hundred different kinds of cells,[4] hence, a multi-cellular organism. Cell is also the smallest particle of the human organism which contains all the information required for the life process and reproduction.[5]  Each cell is consists of nucleus and each nucleus[6] have a tightly curled fiber like structure known as chromosomes or coloured bodies.[7]  Each chromosome contains a strand of tightly coiled DNA.[8] Deoxyribonucleic acids are those biological features which individual inherits from his ancestors. It is basically presents in the white corpuscles. It carries the unique genetic code.[9] No two people can have same DNA pattern. [10] These peculiar features of DNA ultimately led to the discovery of DNA probes produced by recombinant DNA techniques.[11] Calladine and Drew have made an elegant analogy for DNA, where DNA in the human body functions like a computer tape, which can store programs in order to run a large computer.[12] These probes were used first for diagnosis of genetic diseases and subsequently in the administration of justice. As DNA is claimed to be unique it has a comparative edge over other identity tests. Further DNA is remarkably stable; successful examinations of DNA have been made on blood tested or tissue obtained many months after an individual’s death.[13] The principle of ‘individual uniqueness and identical DNA structure within all tissues of the same body provide the basis for DNA profiling’.[14] There are different modalities of DNA technology like genetic testing, genetic engineering, cloning and DNA profiling or fingerprinting.

  1. DNA Profiling meaning and method: DNA profiles are encrypted sets of numbers that reflect a person’s DNA makeup which, in forensics, is used to identify human beings. DNA is a complex molecule. DNA profiling is a process of extracting of DNA from the crime scene and of suspect. Lord Taylor C.J. in the case of Deen (transcript:December 21, 1993) has coined that

“The process of DNA profiling starts with DNA being extracted from the crime stain and also from a sample taken from the suspect. In each case the DNA is cut into smaller lengths by specific enzymes. The fragments produced are sorted according to size by a process of electrophoresis. This involves placing the fragments in a gel and drawing them electromagnetically along a track through the gel. The fragments with smaller molecular weight travel further than the heavier ones. The pattern thus created is transferred from the gel onto a membrane. Radioactive DNA probes, taken from elsewhere, which bind with the sequences of most interest in the sample DNA are then applied. After the excess of the DNA probe is washed off, an X-ray film is placed over the membrane to record the band pattern. This produces an auto radiograph which can be photographed. When the crime stain DNA and the sample DNA from the suspect have been run in separate tracks through the gel, the resultant auto-radiographs can be compared. The two DNA profiles can then be said either to match or not. Using this genetic fingerprinting, identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred per cent precise, experts opine.”[15]

  1. Legal Position of DNA Profiling in India: The recent advancement in the biological science has given new dimensions to the forensic investigation and turned to be pivotal in the administration of justice. Likewise the other developed jurisdictions the DNA evidence is being increasingly relied upon by courts in India. The 2005 amendment in the Cr.P.C. which insert section 53A made DNA profiling a part of statutory scheme. Similarly Secion164A of Cr.P.C. accommodates for the medical examination of the victim of rape and material taken from the person of the woman. In India DNA reports are accepted as concrete evidence unless it is completely dented and its validity is in question. If the test is carried with full authenticity and without any kind of hindrance, DNA test report is to be accepted.[16] Apex court hold that the court cannot substitute its own opinion for that of an expert particularly when the expert opinion is relating to the DNA profiling. Accuracy and authenticity of the DNA profiling is rarely questioned.[17] Therefore DNA profiling so conducted under the purview of section 53A of the Cr.P.C. facilitates the prosecution to prove its case. A positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favoring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered. Justice A. P Shah Committee Report has also highlighted the importance of DNA test in the criminal trials. Committee though appreciates the DNA test in the criminal trial but at a same time has raised the concern pertaining to the accused person and illegal collection and use of DNA Data. Committee further advocate for informative participation of the subject from whom data is going to be prepared with a mechanism to challenge the retention of the data.[18] In addition thereto J. Malimath Committee has also recommended to enlist the DNA experts under section 293(4) Cr.P.C. The committee further recommends that if any accused refused to give sample for the purpose of DNA profiling then an adverse inference must be drawn against the accused as drawn under section 27 of the Prevention of Terrorism Act, 2002.

DNA test and profiling was a judicially recognized and accepted phenomenon but prone to the privacy of the individual. It stands in conflict with the Article 19, 20 and 21 of the constitution. Though the collection of Blood Sampling, Finger Prints, Photographs etc for the purpose of investigation is constitutionally recognized[19] but brain mapping, truth serum and polygraphic cases are required to be conducted with the due consent of the accused which creates the scope of the protection of the individual’s privacy and stop him to be witness against himself.[20]

  1. DNA Profiling under the DNA Based Technology (Use and Regulation Bill) 2017: Department of Biotechnology has submitted the 1st draft proposal of DNA Profiling Bill in 2007. It received new name and dimensions in the form of a revised legislation namely, DNA Fingerprinting Bill, a draft of which was ready in 2015 but could not be introduced in Parliament.[21] Since then this law was in huge debate due to concern of privacy and misuse of the said information. The draft DNA Based Technology (Use and Regulation) Bill, 2017 introduced by the law commission permits processing of DNA samples and puts in place safeguards against the misuse of data.[22] This bill has proposed to constitute National DNA Data Bank and DNA Profiling Board. [23] The Bill has identified the purposes for which this data bank can be used moreover it also make provisions for the constitution of State DNA Profiling Bank and of State DNA Board. Board is an instrumentality for laying down the methodologies and standard for the collection and preservation of sample for DNA profiling. The Bill requires that the National DNA Profiling Bank will collect and preserve data from the offenders, missing persons, suspects and unidentified dead bodies. Section 22 of the Bill of 2017 proposed to obtain the consent of the person before taking bodily substance for the purpose of DNA Profiling. Section 22 (2) further proposes that if a person refused to give his consent then required bodily substance can be collected with the order of magistrate. Section 34 of the proposed bill provides that information relating to DNA profiles, DNA samples and records thereof maintained in a DNA laboratory shall be made available for the purposes of identification of criminals, evidence in the judicial proceedings, prosecution and defense in criminal adjudication, for the purpose of investigation in the civil cases of nature listed in the schedule like paternity etc.[24]

The schedule attached to the DNA Based Technology (Use and Regulation) Bill, 2017 provide a vague reference to the seventeen different legislations where DNA test can be conducted without specifying the specific offence in the respective legislation. The reference is so vague and wide that a case of traffic law violation can also attract the DNA probe against the individual. Therefore, the big claims of Bill of 2017 that it accommodate the issue of privacy with individual’s liberty by creating an institutional set up, identified purpose and penalty in case of unauthorized use of the DNA profiling seems very tinny and far from liability. It stands in conflict with the basic human rights, political and civil liberties and grundnorm of this country.

  1. DNA profiling and threat to Privacy

The unique characteristics of DNA play a crucial role in identification of a person. Apart from identical twins every person has a unique DNA. DNA profiling has been proved to be a robust tool for in the hands of law enforcement agencies in detecting offenders and identifying innocents.[25] Per contra there is huge debate which surrounds the misuse of DNA samples to violate genetic privacy and to discriminate against people. The debate seems to be worthy because DNA samples (such as blood, semen, bone etc) has potential information regarding personal genetics (such as gender, race, health, disease etc). The DNA profiling which will be used for forensic purpose will have information about victims, suspects and their families. There are several legal, ethical and socio legal challenges which must be addressed before utilizing such sensitive information. The schedule attached to the DNA Based Technology (Use and Regulation) Bill, 2017 recognizes the four classes. Class “A” consists offences under Indian Penal Code where DNA can be employed for investigation. Class “B” covers offences under the special acts like The Immoral Traffic (Prevention) Act, 1956, The Motor Vehicles Act, 1988, The Protection of Women from Domestic Violence Act, 2005 etc. Class “C” includes civil disputes like paternity, pedigree, surrogacy. Class “D” includes other offences like medical negligence, unidentified human remains, identification of abandoned children etc. In addition thereto the section 55 ensures wide power to government to amend and amend ant entry in the schedule.

Therefore, 2017 bill proposed by the law commission is so extensive that even you jumped a red signal while driving a car, DNA test can be conducted. Moreover, an individual who have not found guilty of an offence will become part of the biggest DNA database. Pro government groups are advocating for DNA bill to introduce in the line of USA and UK but the question is whether we are prepared to protect data and ensure privacy? The dynamics of DNA profiling make it far more vulnerable than using other conventional evidences like fingerprints and photographs[26] because latter only provides information about an individual but former provides information about whole family. This nature of DNA profiling raises serious questions relating to human rights and privacy.

3.1. DNA profiling and violation of Privacy: Privacy is the integral part of human rights under The Universal Declaration of Human Rights (UDHR),1948[27]. Article 12 of UDHR mandates that one shall not be subject to arbitrary interference with his privacy, family, home or correspondence etc. Privacy as a right further receives affirmation in the International Covenant of Civil and Political Rights(ICCPR),1996[28] and in European Convention for The Protection  of Human Rights and Fundamental Freedoms[29]. Article 8 of ECHR specifically talks about privacy. Apart from these provisions the European Courts of Human Rights, and the United Nation Human Rights Committee have ‘ produced a formidable body of jurisprudence elaborating  privacy as human right’.[30] Hon’ble Supreme Court had also in past has recognized the privacy as a fundamental rights.[31] The issue of the right to privacy has received a new dimension with the judgment of the constitution bench of the apex court in the case of JUSTICE K S PUTTASWAMY (RETD.)AND ANR V Union of India and Ors.[32] 9 Judges of the Apex court unanimously hold that the “privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III.” Henceforth, privacy has brought to same level as of the other fundamental rights.

DNA samplings which largely proposed to be use in crime detection and detection of identity in case of natural calamity is prone towards the privacy of the individual. In practice if the crime suspect’s DNA is found at the spot of crime it will create a presumption of presence of the accused there. In case if the targeted person is available than sample is taken from light scrapping from cheek. If the targeted person is not available we take the recourse of indirect methods like fallen strands of hair, bodily fluid from sputum, bloods from accidental cuts etc. The technique can be considered adequate for the purpose but it needs developed infrastructure, trained human force and immaculate brevity and precision. DNA PROFILING BILL when it will come into force will raise a lot of privacy concerns but most likely off shoots would be-

(A)MISUSE AND ERROR IN EXTRACTION OF DNA: There is no iota of doubt with respect to credentials of this technique of DNA profiling with respect of identifying persons. As no system can be considered as perfect, DNA profiling technique cannot be considered as an exception. Like any other scientific process DNA PROFILING technique will also lead best result if it is done in the ideal condition. The obvious lacuna of this technique can be advocated through following illustration. During normal course of the day we human being shed cells from our body all the time like sputum, blood, skin debris etc. If a person is killed on the road and while passing through the road accidently a piece of hair, skin debris or sputum reaches the site will put you in the category of a suspect. This can be an awkward situation in which despite of your non –involvement in crime you will be treated as suspect. Further, it will contaminate the quality of evidence which is needed to establish the culpability. The other practical problem would be when someone purposely plant evidence by placing any of the trait which will be sufficient to inflict culpability.

(B)DNA RECORD AS A TOOL OF SURVIELLANCE: Across the world the role of a state has taken a paradigm shift. The states all over the world have become more stronger authoritarian in nature. The DNA profiling technique is largely neutral it does not discriminate between person on any basis. But the problem lies with the law enforcement agencies which are under direct and pervasive control of state. In present world scenario state may be bias against different section of the society – based on religion, caste, race, class and sex. This biasness of state can be directed towards the surveillance of the targeted lot and doing so, DNA profiling will work as an arsenal in the hands of government. This DNA profiling can work as a tool for government in suppressing every dissenting voice raising against the government. There is huge probability that it will lead towards the annihilation of democratic values. In modern time where political agendas of ruling parties are premised on different ethical and non-ethical values the possibility of mishandling of such a delicate data cannot be undermined.

(C)DNA PROFILE AN EVER INCREASING NETWORK: Vulnerabilities of record is directly proportional to the length of the data. The draft bill seems to a one way tunnel in compassing everything which can attract inclusion of a person in database repository. It will include under its ambit all those incriminated acts which has been specified in the schedule of the DNA Profiling Bill 2017[33]. In most simpler terms even you jump a traffic red light or participate in a political procession you will be include in database. There is one more practical problem that even though you have been exonerated from the charges there is no provision of exclusion of your name from database. There is a huge probability that a person would be called to a police station every time an incident of similar type is done because in Indian judicial system exoneration also takes a lot of time. This can be formidable attack on the reputation of person who has just jumped a red light but has his profile categorised with criminal.

Further there have been talks around that this DNA profile will be further linked with the AADHAR. There has been serious apprehension about the data security of AADHAR itself. Linking it with DNA profile will robe up everything from the hands of common citizen. Very clearly the proposed database is not an innocent tool to fight crime.[34] This bill will has other ulterior motive it will make a state a major oppressor with common people hardly left with anything to stand before the state.

CONCLUSION

Technological advancement of the society is a double edged sword. The common human minds are using destructive technologies for committing the crime. In response legislature need to be inventive and required to employ new set of technology in the investigation and determination of criminal liability. The DNA profiling bill facilitate the same objective which is based on the all-encompassing scientific technology and to give more powers to investigating agencies to ensure more conviction and improvised the criminal justice delivery in the country. The Bill provides for the setting up of a statutory DNA Profiling Board and restricts DNA profiling to the specific purpose as defined in the schedule –I of the bill, identification of a person and not for extracting other information.[35] No doubt DNA profiling is the need of hours but its reliability, efficacy, adherence to privacy remain in high debate. This debate receive new dimensions with the judgment of Supreme Court declaring privacy as a fundamental rights. Apex court while declaring the privacy as a fundamental right recommends a robust regime which balances individual interests and legitimate concerns of the state. Justice Chandrachud notes, “Formulation of a regime for data protection is a complex exercise that needs to be undertaken by the state after a careful balancing of requirements of privacy coupled with other values which the protection of data subserves together with the legitimate concerns of the state.”[36]The government had created new committee in the supervision of former Supreme Court judge, Justice B.N. Srikrishna, on July 31, 2017 to identify “key data protection issues” and suggest a draft data protection Bill.

The authors have no intention to argue that DNA profiling cannot be employed in India or it is ipso facto bad but argument is that we have to create a robust data before employing such a technique. In absence of a proficient data protection laws deployment of such a technique will give wide powers to DNA profiling board.  It is further suggested that employment of this technique on the suspect should be with due permission of the suspect in same line as Narco and Brain mapping test are employed. Therefore, proposed legislation which is vulnerable to the privacy require state to make the DNA Profiling legislation in compatibility with rule of constitutional mandates.


This Article is written by Asst. Prof. Rupendra Singh Jadaun working as an Assistant Professor at School of Law, Lovely Professional University Jalandhar and Asst. Prof. Gautam Gupta working as an Assistant Professor at Dharmashastra National Law University Jabalpur.


 

References:

[1] (2011) 7 SCC 130

[2] Law commission of India Report no-271 “Human DNA Profiling – A draft Bill for the Use and Regulation of DNA-Based Technology”

[3] M.P. Sharma V UOI 1950 SCR 1077

[4] Visharam Singh, General Anatomy (Elseveir, 2008) 27; See also Mathew Fox, The Hidden Spirituality of Men: Ten Metaphors to Awaken the Sacred Masculine (New World Library, 2008) 128.

[5] Daniel D Chiras, Human Biology (Jones and Bartlett Learning, 7th Ed, 2008) 38-9.

[6] Adolf Faller and Michael Schunke, in Ethan Tuab (ed), The Human Body: An introduction to structure and Function (Georg Thime Verlag, 2004)10.

[7] Australian Law Reform Commission, Essentially Yours, Us Department of Energy Genome Research Programs, ‘Genomics and its impact on Science and Society’

[8] Andre A. Moenssens, DNA EVIDENCE AND ITS CRITICS—HOW VALID ARE THE CHALLENGES? Jurimetrics, Vol. 31, No. 1 (Fall 1990), pp. 87-108 Published by: American Bar Association

[9] Mukesh and Ors. vs. State for NCT of Delhi and Ors. (05.05.2017 – SC) : MANU/SC/0575/2017

[10] Law Commission of India

[11] Andre A. Moenssens, DNA EVIDENCE AND ITS CRITICS—HOW VALID ARE THE CHALLENGES? Jurimetrics, Vol. 31, No. 1 (Fall 1990), pp. 87-108 Published by: American Bar Association

[12] Rory M Hope, Structure and Function of DNA: An introduction’ in J Roberston, AM Ross and L A Burgogyne (eds), DNA in Forensic Science: Theory, Techniques and Applications (CRC Press, 1990)1,2.

[13] See Haglund et al., Identification of Decomposed Human Remains by Deoxyribonucleic Acid (DNA) Profiling, 35 J. Forensic Sci. 724 (1990), documenting

[14] Lome T Kirby, DNS Fingerprinting: AN Introduction (Oxford University Press, 1993)1.

[15] Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh MANU/SC/1306/2009 : (2009) 14 SCC 607; Mukesh and Ors. vs. State for NCT of Delhi and Ors. (05.05.2017 – SC) : MANU/SC/0575/2017

[16] Mukesh and Ors. vs. State for NCT of Delhi and Ors. (05.05.2017 – SC) : MANU/SC/0575/2017

[17] Santosh Kumar Singh v. State through CBI MANU/SC/0801/2010 : (2010) 9 SCC 747

[18] AP Shah Committee Report

[19] Kathi Kalu Oghad & Ors AIR 1961 SC 1808

[20] Selvi v. State of Karnataka, 2010 7 SCC 263

[21] http://indianexpress.com/article/explained/simply-put-understanding-the-new-dna-tech-bill-4776304/

[22] Is profiling in India’s DNA? Narayan Ramachandran http://www.livemint.com/Opinion/6wGBEP2ThTvjzT4175jVOO/Is-profiling-in-Indias-DNA.html

[23] “Report No. 271: Human DNA Profiling- A draft Bill for the Use and Regulation of DNA-Based Technology”, Law Commission of India, July 2017, http://lawcommissionofindia.nic.in/reports/Report271.pdf.

[24] Section 34 of the DNA Profiling Bill

[25] John Marshall Butler, forensic DNA typing:Biology,Technology,and Genetics of STR Markers(Elseiver Academic Press,2nd ed,2005)ix-x

[26]AmitaiEtizoni, The Common Good( Polity Press, 2004) 137-8

[27] UDHR UNDOC A/810

[28] ICCPR art 17(1)

[29] Art. 8 ECHR

[30] Australian Law Reform Commission, Privacy, Report No-22(1983) vol 1.10[20]

[31] Gobind v State of Madhya Pradesh (1975) 2 SCC 148, R Rajagopal v State of Tamil Nadu (1994) 6 SCC 632, People’s Union for Civil Liberties V Union of India (1997) 1 SCC 301

[32] WRIT PETITION (CIVIL) NO 494 OF 2012.

[33] DNA profiling draft bill 2016

[34]http://peoplesdemocracy.in/2015/0809_pd/human-dna-profiling-bill-invasion-privacy-grand-scale accessed on 8/09/2017

[35] http://www.thehindu.com/opinion/op-ed/regulation-of-dna-profiling/article19372786.ece

[36] Supra Note 32

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