Earlier this month, Kuwait enacted a law that makes DNA profiling of its citizens and foreign nationals living in the country mandatory. Anybody refusing to furnish their DNA for this database is liable to be jailed for up to seven years. This means all residents of Kuwait, including Indian workers living there, will have to give samples so that their DNA can be extracted and kept in government custody. To say the least, it is draconian.

Even before the news of Kuwait's DNA profiling law sank, news has emerged about such a law in India. No, the Indian government is not emulating the Kuwaiti model, but only wants to make DNA profiles of criminals and suspects. The Human DNA Profiling Bill 2015 is slated for introduction in the Indian Parliament during the current session. The full draft of the Bill is not currently in the public domain, but going by the details trickling from various sources (and information based on its earlier versions), it appears that the bill has clauses that violate privacy and leave room for potential misuse.

What is DNA profiling?

DNA fingerprinting is now fairly common in crime detection and is used for establishing the identity of people in the aftermath of accidents or in settling paternity suits, like in the case of former UP chief minister ND Tiwari. The identity of deposed Iraqi leader Saddam Hussein was established through DNA testing, probably by matching it with earlier samples of Hussein or those of his sons. Since a person shares about half of his or her DNA from each of parents, this data can be used to identify parents, siblings and relatives of an individual. DNA profiling is an extension of using DNA testing for crime detection. It involves the creation of a database of DNA of those who are convicted, jailed or suspects for a crime, so that in the event of a crime in the future, their DNA can be matched against the details in the database. It is much like the police keeping a record of fingerprint and iris data of criminals.

Why you need a law for it

A law is needed so that DNA data becomes admissible as evidence in judicial proceedings and handling of DNA testing, and use of this information by law enforcement agencies and others is regulated. At present, DNA testing labs are unregulated and lack uniform testing protocols and procedures. In the absence of a legal framework, a database can't be prepared and maintained. It depends on the government as to what kind of information it wants included in the database - be it information on only convicted persons, suspects or all those jailed. If the database is to include all those in custody, then the DNA profile of acquitted individuals will have to be deleted, as done in some countries. A DNA profiling law is supposed to codify everything and set procedures for collection, safety, use and access of DNA samples and data.

What are the objections?

According to the 2007 draft of the Bill, which is available in the public domain, the National DNA Data Bank and state data banks will store DNA profiles received from different laboratories for samples picked up from crime scenes, samples of suspects, offenders, missing persons, unknown deceased persons and that of volunteers. The data will be shared with enforcement agencies within the country as well as abroad, upon request. Usha Ramanathan, one of the members of the expert committee which examined ethical issues relating to DNA profiling, has raised issues of consent, infallibility of DNA data and costs associated with setting up the database. There could be false matches, human error and cross-contamination during analysis. It is also doubtful if such a database can boost crime detection rates, going by experience of countries that have similar databases.

How it can be misused

Though the draft Bill provides for an elaborate procedure for accessing data contained in national and state data banks, possibilities of leakage and misuse exist. Technically it is possible for the data to be used for non-forensic purposes and to decipher information such as family history, medical history and ancestry. The prescribed form for collection of data from criminals has a column for "caste", which experts fear could lead to profiling of certain castes and population groups. The UID database already has biometric information for most Indians. If any government in future decides to link the UID database with the DNA database, it would place in the hands of the government and its agencies all personal details about millions of citizens. Will the information be made available for research? At present, for all DNA studies, scientists need consent of people whose samples are collected. Without proper consent procedures, it would be a gross violation of privacy and human rights.

What is the way out?

The idea of a DNA database administered by a DNA authority was first mooted during the NDA regime in 2003. After several committees and deliberations within the government, a draft was released in 2007 and another draft got leaked in 2012. Meanwhile, investigative and law enforcement agencies have been seeking speedy approval of the Bill. There has been some public discussion on the Bill, but all its provisions have not been discussed and debated in a transparent way. The need for DNA profiling for solving complex cases and the use of DNA information as evidence does exist, and so does the need for a law to regulate DNA collection, analysis and storage. However, this should be the limited purpose of a DNA database.

India should proceed carefully without sacrificing the privacy and personal liberty of its citizens.