Here's Why We Need a Lot More Discussion on India's New DNA Profiling Bill

“Here’s Why We Need a Lot More Discussion on India’s New DNA Profiling Bill” is an article by Elonnai Hickok, published in the Hindustan Times on 7 August 2017. The article examines the proposed Use and Regulation of DNA Based Technology Bill 2017, recognising improvements over earlier versions while identifying the safeguards that were still missing. It argues that the implications of creating regional and national DNA databanks need to be fully understood and publicly debated.

Contents

  1. Article Details
  2. Full Text
  3. Context and Background
  4. External Link

Article Details

📰 Published by:
Hindustan Times
📅 Date:
7 August 2017
✍️ Author:
Elonnai Hickok
📄 Type:
Opinion / Analysis
🔗 Original Link:
Read the original article

Full Text

The DNA Profiling Bill 2017 is still missing a number of safeguards that would enable individual rights. The implications of creating regional and national level DNA databanks need to be fully understood and publicly debated.

The first step towards a DNA Profiling Bill was taken in 2007 with the 'Draft DNA Profiling Bill' by the Centre for DNA Fingerprinting and Diagnostics. Since then, there has been a 2012, 2015, and a 2016 version of the Bill - the last not available to the public. In 2013, the Department of Biotechnology formulated an Expert Committee to deliberate on concerns raised about the Bill and finalise the text. The 'Use and Regulation of DNA Based Technology Bill 2017' and the report by the Law Commission is a further evolution of the legislation and dialogue. The 2017 Bill contains a number of improvements from previous versions - yet there are still outstanding concerns that remain.

Positive changes in the Bill include provisions for consent, defined instances for deletion of profiles, limitation on purpose of the use of data in the DNA Data Bank, defined instances for destruction of biological samples, and the ability for an individual to request a re-test of bodily substances if they believe contamination has occurred.

Despite these changes the Bill still has an overly broad schedule defining instances of when DNA profiling can be used and is missing a number of safeguards that would enable individual rights. These include a right to notification of storage and access to information on the DNA databank, the right to appeal and challenge storage of DNA samples, and right to access and review personal information stored on the DNA Data Bank.

It is concerning that the 2017 Bill has left the defining of privacy and security safeguards to regulation - including implementation and sufficiency of protection, appropriate use and dissemination of DNA information, accuracy, security and confidentiality of DNA information, timely removal and deletion of obsolete or inaccurate DNA information, and other steps as necessary. Furthermore, though the Law Commission cites the use of the 13 CODIS (Combined DNA Index System) profiling standard as a means to protecting privacy in its report - this standard has yet to find its way in the text of the Bill.

The implications of creating regional and national level DNA databanks need to be fully understood and publicly debated. DNA is not foolproof - false matches can take place for multiple reasons. Importantly, the usefulness of DNA based technology to a legal system and the impact on individual rights is dependent and reflective of the social, legal, and political environment the technology is used in. DNA based technology can be a powerful tool for law enforcement, and it is important that a robust process and structure is given to the collection of DNA samples from a crime scene to the laboratory for analysis, to the DNA Bank for storage and comparison, but this structure needs to also be fully cognizant of the rights of individuals and the potential for misuse of the technology.

As society continues to rapidly become more and more data centric, and that data increasingly is a direct extension of the person, it is critical that legislation that is developed has clear protections of rights. In addition to amendments to the text of the draft 2017 Bill, this includes enacting a comprehensive privacy legislation in India. It is worrying that in the conclusion of its report, the Law Commission has referred to whether privacy is an integral part of Article 21 of the Constitution as merely 'a matter of academic debate.' Privacy is recognised as a fundamental right in many democratic contexts - including many of those reviewed by the Law Commission as examples of contexts with DNA Profiling laws.

Policy needs to evolve past protections that are limited to process oriented legal privacy provisions, but instead to protections that are comprehensive - accounting for process and enabling the individual to control and know how her/his data is being used and by whom. Other countries have recognised this and are taking important steps to empower the individual. India needs to do the same for its citizens.

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Context and Background

The article was published in the Hindustan Times on 7 August 2017, during a decade-long process of drafting legislation on DNA profiling in India. The first draft had been prepared in 2007 by the Centre for DNA Fingerprinting and Diagnostics. Further versions followed in 2012, 2015 and 2016, although the 2016 version was not made publicly available. In 2013, the Department of Biotechnology had constituted an Expert Committee to consider the concerns raised about the proposed law and work towards finalising its text. The 2017 draft and the Law Commission’s report represented the next stage in that process.

Hickok acknowledges that the 2017 Bill contained improvements over earlier versions. These included provisions for consent, defined circumstances for deletion of DNA profiles and destruction of biological samples, limits on the purposes for which information in the DNA Data Bank could be used, and the ability to request a fresh examination where contamination was suspected. The article nevertheless argues that these changes did not resolve important concerns about the breadth of the Bill’s schedule or establish adequate rights for individuals whose information could be collected and retained.

A central issue was the decision to leave key privacy and security protections to regulations rather than setting them out clearly in the legislation. The article identifies safeguards relating to accuracy, confidentiality, security, appropriate use and dissemination of DNA information, and the removal of obsolete or inaccurate records. It also points to the absence of a clear right to notification, access to information, review, and challenge the storage of DNA samples. The Law Commission’s reference to the 13 CODIS profiling standard had not, at that point, been translated into a requirement in the text of the Bill.

The article also draws attention to the limits of DNA profiling as an evidentiary tool. DNA is not foolproof, and false matches can occur. A reliable system therefore requires safeguards throughout the process, from the collection of material at a crime scene to laboratory analysis, storage in a DNA Data Bank, and the comparison and communication of results. The legal framework must account both for the potential value of the technology in law enforcement and for the possibility of error or misuse.

The broader concern is the relationship between data-driven governance and individual rights. Hickok argues that procedural rules alone are insufficient: people must be able to know how their information is being used and by whom, and must have meaningful protections over that information. The article calls for amendments to the 2017 draft as well as comprehensive privacy legislation in India. It also records concern that the Law Commission’s report described the constitutional status of privacy under Article 21 as a matter of academic debate, despite privacy being recognised as a fundamental right in many democratic jurisdictions.

The CIS page reproducing the article records 21 August 2017 as its publication date. The newspaper article itself identifies 7 August 2017 as the original publication date.

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