Critical Analysis Of The Human Dna Profiling Bill, 2015.docx

CRITICAL ANALYSIS OF THE HUMAN DNA PROFILING BILL, 2015 Introduction In the recent times, various courts have relied upon DNA samples collected from crime scenes, the offenders and/or the victims. They have also ordered collection of samples in multiple cases and it is a wonder how science has finally merged with the legal system to provide for the overall betterment of our society. This paper discusses matters which are very relevant to the recent developments in the legal field pertaining to forensic science and evidences.

Definition Deoxyribonucleic acid in its simplest meaning is a molecule that carries the instructions organisms need to live, develop and reproduce. These instructions are passed down from the parents to their offspring. The human genome contains about 3 billion bases and around 20,000 genes. The structure of the DNA is very long and thus, they don’t fit inside cells unless packaged in the right way. All DNA strands are coiled tightly to form another structure called Chromosomes. In all cases, one will find 23 pairs of Chromosomes in every human being1.

A Brief History of DNA and its Profiling

DNA was first discovered by a German biochemist named Frederich Miescher in 1869. In 1953, James Watson, Francis Cric, Maurice Wilkins and Rosalind Franklin discovered the helix structure of the biomolecule and realized that it could contain genetic information. In 1962, they were awarded the Nobel Prize for discoveries in the field of DNA and its importance2.

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Genetics Home Reference, U.S. NATIONAL LIBRRAY OF MEDICINE (02/08/2017), https://ghr.nlm.nih.gov/primer/basics/dna, last seen on 12/08/2017. 2 R. Rettner, DNA: Definition, Structure and Discovery, LIVE SCIENCE https://www.livescience.com/37247-dna.html, last seen on 12/08/2017.

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(06/06/2013),

Ever since these potent discoveries have been made, DNA has been put to various uses. Genetic tests are conducted to find out if a person carries any hereditary disease, to determine whether a genetic mutation can be passed on to the children, scientific experiments, medical discoveries and solving crimes. The forensic team employs methods like DNA Fingerprinting, DNA Profiling and DNA Coding to solve mysteries from a crime scene3. It was first developed and used in 1984 by Sir Alec Jeffreys and is now globally employed to conduct investigations or to determine parentage. It has also revolutionized the field of zoology, botany and agriculture.

Forensic Science and DNA Evidence The first person to be convicted on the basis of DNA evidence was Robert Melias in 1987 in the UK4. In the case of State vs Andrews5 in the US, Tommy Lee Andrews was convicted in a rape case as his semen sample matched the sample recovered from the victim’s body. Another two important cases where the accused were convicted on the basis of DNA evidence are; first, Glen Dale Woodal vs State of West Virginia and Timothy Wilson Spencer vs State of Virginia. In the case of Frye vs United States6 and Daubert vs Merell Dow Pharmaceuticals, Inc.7 it was held that “The state of the profiling technology and the methods for estimating frequencies and related statistics have progressed to the point where the admissibility of properly collected and analysed DNA data should not be in doubt.” DNA Profiling for Medical Purposes The main benefits of DNA Profiling in the medical field8 are –

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S. Panneerchelvam and M.N. Norazmi, Forensic DNA Data Profiling and Database, NATIONAL INSTITUTES OF HEALTH (10/07/2003), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3561883/, last seen on 12/08/2017. 4 The evaluation of Forensic DNA Evidence (NRCII) (1)1996 - http://www.dnalwyr.com/nrc, last seen on 13/08/2017. 5 State vs Andrews, 533 So.2d 841 (Dist. Ct. App. 1989). 6 Frye vs United States, 293 F. 1013 (D.C. Cir. 1923). 7 Daubert vs Merell Dow Pharmaceuticals, 113 S.Ct. 2786 (1993). 8 K. Paneria, Role of DNA in Disease Diagnosis and Medical Forensics, BIOTECHNOLOGY FORUMS, (30/10/2012), http://www.biotechnologyforums.com/thread-1813.html, last seen on 14/08/2017.

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 Paternity Tests – comparisons between large numbers of the DNA micro-satellites can be used to determine parentage of a child. They’re also used by women who are seeking alimony or maintenance for their children. Some people use the same method to determine their relationship with their grandparents for inheritance or social security benefits.  Hereditary Diseases – many of these tests also help determine whether or not a child suffers or might suffer from a hereditary disease in the future. For instance, fragile X syndrome, Friedrich’s ataxia, cystic fibrosis, muscle dystrophy, diabetes, cancers, obesity, Glaucoma, Parkinson’s, Deafness, Baldness, etc.  Genetic Defects – doctors have also been able to discover and treat any genetic defect like Sickle Cell Anaemia, Huntington’s Disease, Alzheimer’s Disease, etc., that a child may suffer from due to various reasons like stunted growth, lack of oxygen, etc.  Medical Experiments – scientists have often used DNA material to generate new species, re-generate parts and conduct trials and other experiments that have contributed largely towards the advancement of medical science.  Post-mortem Reports – in cases where the body of the victim(s) is damaged beyond recognition, the doctors use DNA material to determine the blood group, parentage and other characteristics.  Armed Forces – Armed Forces from all over the world have started keeping DNA records of all their soldiers for identification.

DNA Profiling for Agricultural Purposes Although the agricultural industry doesn’t rely heavily on DNA Profiling, there are still a few uses9 such as the following –  Identification of Seeds - DNA is often to identify and determine whether or not the seeds belong to the variety that the seller/farmer claims.  Genetic Modifications – it is also used to detect the genetically modified organisms in the agriculture industry.  Tea Market – markers have been prominently used to identify and determine the tea relatedness due to the huge diversity of it.

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Rafael and P. Arnold, The Benefits of DNA Fingerprinting, BRIGHT HUB http://www.brighthub.com/science/genetics/articles/46432.aspx, last seen on 14/08/2017.

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(28/02/2015),

 Authentication of Herbs and Medicines – with the advent of herbal medicines and alternative medicine, DNA Profiling is used to determine the origin of herbs and their characteristics.  Animals – the technique is used to determine parentage, breeds and medical defects in animals.

DNA Profiling for Legal Purposes India has seen a lot of reliance on DNA evidence lately – Army troops, paternity tests on a political spokesman, DNA Profiling databanks, identify criminals and so on and so forth. India is a host to both public as well as private DNA labs. The public labs are sponsored by the Indian Government and cater specifically to DNA testing for forensic needs. The Centre for DNA Fingerprinting and Diagnostics (CDFD) located in Hyderabad is sponsored by the Department of Biotechnology and Ministry of Science. CDFD runs DNA testing for: establishment of parentage, identification of mutilated remains, establishment of biological relationships for immigration, organ transplantation, property inheritance cases, identification of missing children and child swapping in hospitals, identification of rapists in rape cases, identification in cases of murder. Is DNA covered under Article 20(3) of the Indian Constitution? In the case of State of Bombay vs Kathi Kalu Oghad10, the Supreme Court held that “To be a witness may be equivalent to ‘furnishing evidence’ in the sense of making oral or written statement, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purposes of identification.” However the outlook of the courts has changed over the year and in the recent case of Charandas Swami vs State of Gujarat and Others11, the accused filed an appeal against the order of the Gujarat High Court in a murder case where the DNA evidence and medical examination reports of the deceased were taken into consideration. The Supreme Court dismissed the appeal and upheld the High Court’s order confirming that DNA evidence has a substantial value when the courts or police are required to resolve a crime. 10 11

State of Bombay vs Kathi Kalu Oghad, AIR 1961 SC 1808. Charandas Swami vs State of Gujarat and Others, AIR 2017 SC 1761.

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In the case of Rajiv Singh vs State of Bihar and Others12 the Supreme Court relied heavily on the DNA evidence apart from the testimonies by the witnesses to prove charges of dowry death on the husband and his family members.

Requirement of Law on DNA Profiling The authority of law is required over the DNA data so that it becomes admissible in legal proceedings. Also, the laws require regulation of the collection, testing and storage of DNA samples to ensure they aren’t misused. Uniform collection, testing and storage protocols as well as procedures should be defined by the legislation. In absence of such provisions, a database can’t be maintained without causing harm to the people. A DNA Profiling law codifies all the information retained for the purposes of investigation and solving of crimes. It is upon the Government to decide the laws regarding the process and admission of the DNA evidence. Critical Analysis of the DNA Profiling Bill, 2007 The object of the bill was to provide for a proper legal authority for the taking of measurements and fingerprints, foot-prints, photographs and other such evidence of the accused or the victims. The Bill didn’t fare well with the legal system due to various reasons as listed below13 –  The bill lacked provisions for admission of evidence apart from DNA material. DNA evidence isn’t 100% fool proof. The law needed to also value supporting evidence and statistics.  The scope for DNA collection should have been limited to offenders and victims and the list of offence and situations should have been increased.  The Bill only lists offences and situations whereas; it should have clearly defined when DNA can be collected, whether it should be relevant to the offences, etc.  Privacy principles were left to the recommendations of the board. The principles should have been mentioned in the Bill and not left for speculation or recommendations.  It didn’t specify the method of collection, testing and retention of DNA in detail. 12 13

Rajiv Singh vs State of Bihar and Others, 2016 (93) ALLCC 525. supra note 12.

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 Section 19 of the bill talked about the laboratories. It should have also mentioned that it is mandatory for the laboratory to ensure privacy.  It didn’t provide for the method of destroying the DNA profiles created once the case had been decided.  The Bill faced lacuna on the basis of conflicting clauses like Section 14 and Section 15(2) which talked about the permission for conducting a DNA profile test.  The Data Bank Manager had excessive powers without being answerable for his actions.  The Bill didn’t provide any punishment for the illegal collections of DNA samples.  The Bill had no provisions for redressal mechanism.  The Bill allowed outsourcing of powers and duties to people other than the DNA Board.  The Bill allowed public laboratories to function even after breach of public interest or safety.  No liability on laboratories for contamination of DNA samples.  No audit provision for the DNA Board on an annual basis.  Section 39 of the Bill allowed access to Data Bank for “administrative purposes” without defining the term “administrative purposes.”  No provision was available for a person to access his or her own DNA records.  Section 13 of the Bill didn’t include any provision to ensure transparency in the functioning of the Board.

The Human DNA Profiling Bill, 2015 The July, 2015 Bill has been widely criticised for arbitrarily assigning wide discretionary powers, lack of privacy principles and data safeguards and the refusal to submit to any higher authority for regulation of its powers and functions. Some of the major issues with the new Bill are as follows –  First, the Bill has left loopholes in various places and the language used in the text is very vague and can be interpreted in a way that the legislators didn’t foresee.

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 The definition of “offender” states a person accused of committing a specified offence. However, the definition of “suspect” states a person suspected of committing an offence. No specifications have been made.  Proviso to Clause 38 dilutes the strict restrictions on the use of DNA profiles.  The Bill simultaneously incentivises the police to make arrests of the persons, suspected of committing the said offence.  The provision of the Bill allows the Board to have a “volunteer’s index” and add any other index as they prefer. It doesn’t clearly define the functions of the volunteer’s index.  The Board has the final say in all matters related to collection of samples, testing and their retention. It doesn’t submit to any higher authority. The board also has the power to make DNA profiles and samples available for any other purpose, as it may itself prescribe; truly unprecedented control has been vested in a single body without appropriate oversight mechanisms.  The bill allows genome data to be stored from 17 positions allowing personal traits of an individual to be identified beyond the required extent.  Removal of a DNA profile can only be done on a person’s petition to the Bank to do so. However, if no such petition is made, the data is available with the Bank and can be used in any form it may like.  Specifications as to the consent clause are vague in the Bill and it seems that they’ve been left for the interpretation of the Board.  The Bill vaguely provides for regular testing of samples collected but has left quality control out of its purview. There is no mention of the kind of checks that have to be performed, if any and by whom.  The sunset clause is missing in this Bill as well. A sunset clause is a clause which provides for destruction of collected data on expiry of the said time period.  Some experts have shown concern regarding the efficacy of the Bill of the DNA Profiling Bank to solve crimes.  It lacks powerful safeguards for privacy of the people whose data is readily available at the Bank.

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 Clause 43 of the bill is drafted in such a way that a person receiving a DNA profile for entry in a DNA data bank may allow it to be used for a purpose other than the one for which it was received, so long as this other purpose is one contemplated by the bill14.  It is short of addressing concerns like mismatch, data theft or identity theft.  The Bill lacks in listing the powers of the Board and has allowed discretionary powers.

According to recent reports, the Centre informed the Supreme Court in the month of July, 2017 that it has been preparing to introduce a newer version of the Bill in parliament, titled ‘The DNA Based Technology (Use and Regulation) Bill, 2017’15.

Suggestions for the Upcoming Laws on DNA Profiling Even though the Bill is in its nascent stage of development, it encompasses a wide range of offences, crimes, situations and other indices and commits to ensure that an offender is not let off due to lack of evidence against him. It also doesn’t entirely negate the value of other circumstantial and recorded evidence while considering DNA profiles. The legislators have compiled a precise yet in-depth document to control and supervise the handling of evidence as crucial as DNA samples of people. As the Government aims at drafting further legislations to improvise on the current laws and provide a better justice system, these are a few suggestions that should be considered.  First, the new laws should have clarity in their language and leave nothing for the interpretation of the Board or Courts, keeping in mind that DNA material is sensitive and very private information.  All the terms used should be defined precisely and a time period as well as the due process of all investigative procedures should be laid down.  The primary concern has been regarding the powers the DNA Board has in hand. The next legislation should ensure that the Board is responsible and is under the control or

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D. Mehta, Arguments Against the Human DNA Profiling Bill, 2015, KRACTIVISM (25/08/2015), http://www.kractivist.org/india-arguments-against-the-human-dna-profiling-bill-2015/, last seen on 17/08/2017. 15 V. Mukunth, The DNA profiling Bill is Back in a New Avatar, THE WIRE (02/08/2017), https://thewire.in/163958/dna-profiling-fingerprinting-bill-dbt-crime-scene/, last seen on 17/08/2017.

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supervision of a higher authority like many other Government agencies and offices in India.  It should also ensure that the Board has an annual audit and prepares a due list of expenses that it incurs while undertaking the collection, testing and retention of the samples.  The National Bank and its regional or state-wise branches should have proper regulatory mechanisms to avoid erosion or contamination of samples and qualified usage.  The Government should have in place legislation for the standards of qualification of the people employed by the laboratories. It could be through specific colleges, national exams or any other fixed manner that the Government approves.  The officers and other employees of these Boards and laboratories should have a sufficient income and a permanent job so as to avoid corruption at any level. There should also be stricter laws about their re-employment, retirement, etc.  The previous Bills have faced major backlash due to their silence over matters relevant to privacy of the individuals. The new laws should ensure that the persons agree to provide their DNA samples, consent to having their profiles retained at the Bank and have access to their records.  A proper consent clause is required for effective implementation of such laws.  It should also ensure that immediately after a case is decided, the Bank should destroy the DNA samples collected in relation to that particular case unless an appeal or further action is preferred.  The records of the samples should not be made readily available to any person except the police and that too, only on a court’s order.  It should include the sunset clause that has been missing in both the previous legislations. A time period of 3 to 5 years should be kept after which the records shall be destroyed.  Concerns like identity theft, misuse of data, etc., should be addressed in detail in the upcoming legislations.  Amendments to the existing laws of criminal, civil and evidence should be made from time to time to suit the present scenario.  Standards for quality control and protection of samples should be laid down and followed strictly.

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 For better and efficient implementation of these laws, there should be a provision for strict punishments for all errors, negligent acts and by-passing of rules.  No provision should dilute any restrictive or directive provisions of the new or existing laws.  “Volunteer’s Index” should not be kept in the purview of any laws on DNA.  The Bill, in no manner, should allow the Board or Banks to use a person’s DNA sample for any purpose other than that purpose for which it has been collected.  A redressal mechanism should be set up for any complaints made against the Board, Banks or the officers and employees. It should ensure that all such matters are looked into promptly and decided on the basis of merit.  The courts should establish the importance and value of DNA evidence in general and not leave it for interpretation on case to case basis.

Conclusion After looking into the various pronouncements of law on the value and admission of DNA samples as evidence on record and the recent developments, it is safe to say that India is indeed heading in the direction of more systematic and scientifically driven investigations. The efforts in this direction are steady. However, they aren’t balanced. The Government, Courts and legal experts still have to come up with stronger laws in this regard. DNA samples are sensitive and private information which can be misused to a great extent if not regulated and controlled. It is upon the police, courts and the legislators to ensure privacy while they deliver justice.

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