Right To Privacy

Explained: Why govt wants to bank DNA

Mains Paper 2 : Governance, Transparency & Accountability, Citizens Charters

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Debate over the proposed legislation


Context

  • The Union Cabinet cleared the DNA Technology (Use and Application) Regulation Bill once again, paving the way for its reintroduction in Parliament.
  • The Bill had been passed by Lok Sabha in January this year, but could not get the approval of Rajya Sabha before general elections.
  • The fresh clearance by the Cabinet is the third attempt since 2003 by the government to enact a law to regulate the use of DNA technology in the country.
  • The text of the Bill has undergone several changes over the years to address some of the concerns on privacy and the possibility of abuse.

DNA Technology (Use and Application) Regulation Bill

  • The Bill seeks to create a regulatory framework for obtaining, storing and testing of DNA samples of human beings, mainly for the purposes of criminal investigations, and with the objective of establishing the identity of a person.
  • DNA testing is already being used for a variety of purposes, such as criminal investigations, establishment of parentage, and search for missing people.
  • The proposed law seeks to bring in a supervisory structure to oversee these practices, and frame guidelines and rules so that the DNA technology is not misused.
  • To achieve these objectives, the bill proposes to set up two institutional structures — a DNA regulatory board, and a DNA data bank — at the national level.
  • Regional centres of the board as well as the data bank can be set up at the state level as well.

Supervisory structure

  • The DNA regulatory board, which is proposed to be the main regulatory authority, would frame the rules and guidelines for DNA collection, testing and storage.
  • The data bank would be the repository of all DNA samples collected from various people under specified rules.
  • The Bill proposes that testing of DNA samples can be carried out only at laboratories that are authorised to do so by the regulatory board.
  • The bill also specifies the circumstances under which a person can be asked to submit DNA samples, the purposes for which such requests can be made, and the exact procedure for handling, storing and accessing these samples.

DNA Regulatory Board

  • The Regulatory Board will comprise 12 members.
  • Some of them will be experts in the field of biological sciences, whereas the others will be the director-general of the NIA, the directors of the CBI, the heads of the Centre for DNA Fingerprinting and Diagnostics and the Central Forensic Science Laboratory, and a member of the NHRC.
  • The principal responsibility of the Board will be to accredit DNA-testing labs from which data can be collected for the databank and ensure they maintain high quality standards at all times.

Collecting DNA samples

  • DNA samples can be collected from the objects found at the crime scene, or from the body of the accused or volunteer.
  • The samples, collected by an authorised technician or medical practitioner, would have to be sent to an accredited laboratory for tests and analysis.
  • The information generated from these tests would have to be mandatorily shared with the nearest DNA data bank, which in turn, would be required to share it with the national data bank.

DNA data banks

  • Under the provisions, the data banks are required to store the information under one of the five indices — a crime scene index, a suspect or undertrial index, an offenders’ index, a missing persons’ index, and an unknown deceased persons’ index.
  • Although information from DNA can yield a lot of information about the person, the data banks are supposed to store only that information that is necessary to establish the identity of the person.
  • While the information in the crime scene index can be stored permanently, entries in other indices can be removed through processes prescribed.

Removal of information

  • People whose DNA samples have been collected, either from the crime scene, or through voluntary written consent, can also request the removal of their information from the index.
  • DNA samples of people who are not suspects or undertrials cannot be matched with already stored information in the suspects/undertrial index or the offenders’ index.

Using DNA samples

  • According to the provisions of the proposed law, police can ask for DNA samples of the person accused of an offence to facilitate their investigation.
  • But unless the offence is of a very serious nature, punishable by death or by imprisonment for at least seven years, the DNA sample can be obtained only on the written consent of the accused.
  • It can be also be obtained if an authorised magistrate is satisfied that a DNA test is absolutely necessary for investigation of the crime.
  • People who are witness to a crime, or want to locate their missing relatives, or in similar other circumstances, can volunteer to give their DNA samples, again through written consent.

Criticisms  of the bill

I. Over matter of Consent

  • Written consent is required from everyone for their DNA samples to be collected, processed and included in the database except from those who have committed crimes with punishment of 7+ years or death.
  • However, a similarly specific instruction is missing for the collection of DNA samples for civil matters. Such matters include parentage disputes, emigration or immigration and transplantation of human organs.
  • The Bill also doesn’t state that the consent has to be voluntary.

II. Civil Disputes

  • Second, it’s not clear if DNA samples collected to resolve civil disputes will also be stored in the databank (regional or national), although there is no index specific for the same.
  • If they will be stored, then the problem cascades because the Bill also does not provide for information, consent and appeals.
  • If a person’s DNA data has entered the databank, there is no process specified by which they can have it removed.
  • All of these issues together could violate the right to privacy.

III. Authenticity of DNA Labs

  • There’s also the question of whether the DNA labs accredited by the Regulatory Board are allowed to store copies of the samples they analyse.
  • And if so, how the owners of those samples can ensure the data is safe or needs to be removed from their own indices.
  • It’s unclear if the Regulatory Board will oversee other tests performed at the accredited labs.
  • This could become necessary because, unlike one’s biometric data or PAN number, the human genome contains lots of information about every individual.

IV. Overreaching access to identity

  • So a test undertaken to ascertain a person’s identity by analysing her DNA will in the process also reveal a lot of other things about that person, including information about their ancestry, diseases to which they are susceptible, etc. – i.e. information that the individual has a right to keep private.
  • The Bill does not specify which parts of an individual’s DNA can be analysed to ascertain their identity.
  • The more parts are subjected to analysis, the more conclusively a person’s identity can be established.
  • But this can’t be used as a license to parse more than is necessary, because then the DNA lab is also likely to reveal more information than it has the right to seek.

Govt. stance on this

  • The government, on the other hand, has been arguing that since DNA tests are already happening, and frequently used as the most reliable tool to establish identity.
  • It would be better to have regulatory safeguards so that it is carried out only in prescribed manner and by authorised personnel and institutions.
  • The government has also claimed that very limited information is proposed to be stored in the indices — just 17 sets of numbers out of billions that DNA samples can reveal.
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