New Delhi: The Human DNA Profiling Bill, which the government wanted to introduce in the monsoon session of parliament in 2015 but didn’t, has reared its head again. The Centre informed the Supreme Court last week that it has been preparing to introduce a newer version of the Bill in parliament, titled ‘The DNA Based Technology (Use and Regulation) Bill, 2017’. Also in July, the Law Commission of India published the document on its website as part of a longer report on the issue.

“The Department of Biotechnology will now begin work for its further progress through the law ministry and Union cabinet,” K. VijayRaghavan, secretary of the department (DBT), told The Wire.

Called the DNA Bill for short, it seeks to introduce a set of legislative provisions that will allow licensed laboratories, police stations and courts around the country to collect DNA samples from certain groups of people, analyse them for unique information about the persons’ identity, store them in a ‘databank’, use them as evidence during trials and to identify missing or unidentified persons.

The July 2015 version of the Bill was criticised for arbitrarily assigning wide-ranging discretionary powers, for not possessing the necessary privacy and data-security safeguards and for refusing to submit to a higher authority that could hold its administrators accountable. As a result, the DBT, the driving force behind the Bill, drew up an amended version a few months later. However, the new Law Commission draft – also backed by the DBT – is markedly different from the two previous versions, although some similarities have persisted.

The board and the bank

The powers invoked by the Bill are set to rest with two entities: a ‘DNA profiling board’ and the databank. The board will consist of 11 members, at least four of whom can be scientists familiar either with “biological sciences” or specifically with DNA fingerprinting. As such, the board will have the final say in all activities performed under the provisions of the Bill. They can be broadly classified into three kinds: supervising the laboratories tasked with collecting DNA samples and preparing the genetic fingerprints; supervising the maintenance, operations, upgrade and security of the DNA databank; and advising the government on all matters related to DNA profiling, analysis and the data therefrom.

The National DNA Databank will store genetic information obtained from people, under five possible indices: crime scene, suspect/undertrial, offender, missing person and unknown deceased person. Two other provisions present in the 2015 draft have been removed: a volunteers’ index and a provision allowing the DNA profiling board to include any other index as necessary. All activities and decisions concerned the databank will be helmed by a databank director, who will be required to have scientific qualifications.

Though the function of the volunteers’ index had not been fully defined in the 2015 draft, one of its critical roles was in determining the strength of DNA analysis.

DNA fingerprinting relies on sequencing the genome of an individual, which comprises three billion pairs of molecules called nucleotides. Around 99.9% of all human genomes are similar but the 0.01% stands for three million pairs of nucleotides. Among these three million, there are certain pairs of nucleotides that repeat themselves in the genome. The sequence of this repetition is unique to each individual. So the presence of DNA samples at, say, a crime scene containing a particular sequence of repetition can be used as a proxy for their owner’s involvement in the scene with high certainty.

In order to improve this certainty, the 2015 draft had envisaged setting up a volunteers’ index in the databank. By analysing the DNA profiles in this index, scientists would be able to better determine the nature of the repetitions and arrive at an optimum number of points on the genome that will have to be checked before they can be sure that they have identified something unique. So this index is crucial to the Bill’s effective usage in the judiciary system. “This index has now been dropped based on the opinion of an expert committee,” VijayRaghavan said, “because the same information is available in many published papers for DNA examiners to be able to calculate the profile-match probabilities.”

While the 2015 draft of the Bill had suggested that the databank be situated in Hyderabad, where the Centre for DNA Fingerprinting and Diagnostics (CDFD) is also located, the Law Commission draft does not make any recommendations on this front. However, it does allow regional, state-level databanks to be set up such that they all share their data with their national counterpart.

Data rights issues

The bigger issues with the draft Bill lie with how it plans to safeguard the privacy of the people whose DNA profiles will be stored in the databank, the safeguards the samples and databanks will have against contamination and theft, and the terms of use and availability of the profiles among law enforcement officials, scientists and foreign agencies. These issues are analogous to the implementation of Aadhaar as a unique identifier for the citizenry, but whose use continues to raise doubts about its safeguards and viability.

On the plus side, in July 2015, J. Gowrishankar, the director of the CDFD, had told The Wire that the Bill would allow data from 17 positions, or loci, on an individual’s genome to be stored in the databank and used for analysis. Subsequently, The Wire had pointed out that this could allow certain personal traits of the individual to be identified beyond the extent that is actually necessary to confirm the sequence’s uniqueness. In the new draft, thus, the number of loci has been changed to 13.

Additionally, written consent is required to be obtained from an individual before a medical practitioner can obtain a sample of her DNA. And a person’s DNA profile can be compared to entries in the suspects’ and offenders’ indices in the databank only if the individual has been designated a suspect or an offender herself. Until then, her profile can be compared only to the crime scene, missing persons and unknown deceased persons indices.

Should a person’s DNA profile be present in the databank when she is neither a suspect nor a convicted offender, then the record will be removed only if she petitions the databank director in writing. “For this category of individual, we are actually talking of situations such as parent of missing child, victim of assault, etc.,” VijayRaghavan clarified. “Their records will also be removed when the particular case is solved, e.g., her profile has matched with that of her missing child. Please also note that her profile has entered the databank only because she consented to it in the first place, in the hope that it will help locating her child.”

Quality and sunset provisions

However, the consent clause is waived for any person who has been accused of a crime that is punishable either by death or by a sentence of more than seven years in prison. If the person is acquitted after a trial, there is no provision in the Bill for her DNA profile to be removed from the databank (unless she submits a letter to the databank director). Although VijayRaghavan specified that her record would be removed automatically upon acquittal, the specification itself is absent in the draft.

(Note: Section 31(1) of the new draft states that “The information contained in the crime scene index [of the databank] shall be retained [forever]”. VijayRaghavan noted that this is a misstatement, and that only the data contained in the offenders’ index will be retained forever.)

A previous draft of the Bill had allowed all DNA testing labs functioning at the time of enactment of the Bill to undertake DNA profiling under its provisions without applying for the necessary accreditation. The new draft has changed his, forcing all labs to apply for the right license with the DNA profiling board within 60 days of the Bill’s enactment. It also caps the total amount any accredited lab can charge for testing any sample under the Bill’s provisions at Rs 25,000. (According to the CDFD, a government lab, it charges Rs 5,000 for testing a blood sample and Rs 10,000 for a ‘forensic exhibit’, such as an item of clothing.)

The most stringent penalty among all those specified in the Bill has to do with the manipulation or contamination of DNA samples. According to the text, offenders could be sentenced up to five years in prison and pay a fine of up to Rs 3 lakh. However, the degree of decisiveness of DNA profiling that the Bill endorses requires its provisions to ensure that samples be tested regularly for quality. But the Bill leaves quality control out of its purview: there is no mention of what kind of checks need to be performed, by whom or how often. VijayRaghavan only said that “this will have to be framed in the rules that address the mechanism of collection and analysis of data, ensuring quality and reexamination.”

Finally, the previous two drafts of the Bill lacked a sunset clause, a provision that would force some qualifying records to be removed if they had stayed within the databank for a particular period. Such a clause is missing in the new draft of the Bill as well, although VijayRaghavan said that officials were working on this. “At present, these time periods are not specified in the text, but we expect that in the rules and regulations to be framed, the period for which profiles will be retained for different categories as per the international norms will be specified.”

These international norms were spelt out in the Law Commission report accompanying the draft of the Bill. They include 75 pieces of legislation enacted between 1998 and 2009. They have been drawn from 41 countries around the world, including China (Hong Kong), France, Iran, Portugal, South Africa, the UK and the US.