DNA analysis is an extremely useful and accurate technology in ascertaining the identity of a person from his/her DNA sample, or establishing biological relationships between individuals. (Representational) DNA analysis is an extremely useful and accurate technology in ascertaining the identity of a person from his/her DNA sample, or establishing biological relationships between individuals. (Representational)

After a gap of two years, a proposed legislation to regulate and standardise DNA testing is back in discussion. Last week, the Centre informed the Supreme Court that it was preparing to finalise a fresh version of the DNA Fingerprinting Bill, a draft of which was ready in 2015 but could not be introduced in Parliament. Also last week, the Law Commission of India released a revised draft of the Bill that is now called The DNA Based Technology (Use and Regulation) Bill, 2017 with some very important changes.

The proposed law, which has been in the making since 2003, seeks to establish regulatory institutions and standards for DNA testing, and supervise the activities of all laboratories authorised to carry out such tests.

DNA analysis is an extremely useful and accurate technology in ascertaining the identity of a person from his/her DNA sample, or establishing biological relationships between individuals. A hair sample, or even bloodstains from clothes, from a scene of crime, for example, can be matched with that of a suspect, and it can, in most cases, be conclusively established whether the DNA in the sample belongs to the suspected individual. As a result, DNA technology is being increasingly relied upon in investigations of crime, identification of unidentified bodies, or in determining parentage.

But information from DNA samples can reveal not just how a person looks, or what their eye colour or skin colour is, but also more intrusive information like their allergies, or susceptibility to diseases. As a result, there is a greater risk of information from DNA analysis getting misused. This is why some groups are opposed to the Bill — they have been advocating greater caution in collecting, storing and using a person’s genetic data. The whole debate has been over provisions that can minimise the risks of misuse.

What the Bill proposes

The Bill seeks to set up two new institutions — a DNA Profiling Board and a DNA Data Bank. The Board, with 11 members, is supposed to be the regulatory authority that will grant accreditation to DNA laboratories and lay down guidelines, standards and procedures for their functioning. It will advise central and state governments on “all issues relating to DNA laboratories”. It will also be the authority to make recommendations on ethical and human rights, including privacy, issues related to DNA testing.

A national databank of DNA profiles is proposed to be set up, along with regional databanks in every state, or one for two or more states, as required. In the 2015 draft, the national databank was proposed to be set up at Hyderabad, possibly because the Centre for DNA Fingerprinting and Diagnostics, the premier DNA laboratory, is located there. The new draft does not specify the location of the national databank. All regional DNA databanks will be mandated to share their information with the national databank.

Certain DNA Profiling Board-accredited labs would be authorised to carry out DNA testing and analysis. These are the only places to which DNA samples, picked up from a crime scene, for example, by police, can be referred for analysis. Data from the analyses will need to be shared with the nearest regional DNA databank which will store it and share it with the national databank.

The databanks will maintain five sets of databases — for DNA samples picked up from crime scenes, for suspects or undertrials, and for offenders, missing persons, and unidentified dead bodies. The previous Bill provided for maintaining a database of people who volunteered to give their DNA profiles, but that has now been deleted. A provision for creation of other indices “as may be specified by the regulations”, too, has been left out.

The objections

The main issue is whether DNA technology is foolproof, and whether the proposed law adequately addresses the possibility of abuse. It has been argued that although DNA technology is the best method available to carry out this kind of identification, it is still probabilistic in nature. There are chances, however remote, that a wrong match is generated. If the DNA result is taken as the ultimate evidence, no recourse will be available to an individual who has been wrongly matched.

More frequently asserted are the privacy-related objections. Questions such as whose DNA can be collected and under what circumstances, whether the consent of the individual is required, who can access the database, to what uses the DNA information can be put apart from identifying an individual, and the circumstances under which a record can be deleted, have been raised repeatedly. It has been pointed out that information like ancestry or susceptibility to a disease, or other genetic traits, is liable to be misused. It has also been argued that DNA tests have not led to an improvement in conviction rates in countries where it is already being followed.

The justifications

The new draft Bill does try to address some of these concerns, although it reiterates complete faith in DNA technology. DNA profiling is “an accurate and well established scientific technique”, says the Law Commission report that has proposed the new draft.

The new draft Bill does try to address some of these concerns, although it reiterates complete faith in DNA technology. DNA profiling is “an accurate and well established scientific technique”, says the Law Commission report that has proposed the new draft.

The draft has introduced a new provision that explicitly prohibits the collection of any “bodily substance” from an arrested individual (for the purposes of a DNA test) without his/her consent, except if the individual is arrested for certain specific offences. However, if the consent “is refused without good cause”, and a magistrate is satisfied of the need for a DNA test, he/she can order the arrested person to give a sample.

Samples picked up from a crime scene, belonging to those who are not offenders or suspects, would not be matched with the databases. Such DNA profiles would have to be expunged from the records on a written request from the individual concerned.

The new Bill has also removed a provision that allowed DNA profiles in the databank to be used for “creation and maintenance of population statistics databank”.

While the penalty for misuse of data remains a prison term of up to three years and a fine up to Rs 1 lakh, a reference to a minimum prison term of one month has been removed.

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