India’s Human DNA Profiling Bill 2015 proposes to set up a national DNA database of criminals that will include rapists, murderers and kidnappers. But the proposed draft is being criticized on several grounds — from being insensitive to privacy issues to allowing intrusive modes of sample collection.

The draft has been drawn up by the Department of Biotechnology in association with an autonomous institution, the Centre for DNA Fingerprinting and Diagnostics (CDFD) and has been in the works for 12 years. But international activist groups monitoring developments in genetic technologies like GeneWatch UK, Council for Responsible Genetics, USA and online collectives like The Forensic Genetics Policy Initiative (FGPI) say it doesn’t have enough safeguards built into it.

Too large and sweeping

The DNA databank, as visualized in the draft bill, will have six categories, ranging from suspects to missing persons (see box). The offenders’ index in the final bill may even encompass minor crimes such as the MV (Motor Vehicles) Act offences.

“Making the database too big and poorly regulated will not help solve more crimes,” says Helen Wallace, director of Genewatch.

Jeremy Gruber, former head of the Council for Responsible Genetics, who has followed the draft bill since inception, says that the larger that data the greater the chances of human error and fraud. He points out that no other country has assumed such expansive authority on the issue. “They have unlimited power to expand the categories of persons from whom information is collected. Any evidence that’s handled by humans is subject to mistake, error and intentional fraud and the more DNA is collected the more the chance of errrors,” he says.

What the CDFD says: Dr J Gowrishankar, director, CDFD, counters that these fears have no grounds —the current probability of a false positive match with the existing technology, he points out, is roughly estimated (for US Caucasian population) at “one in 800 trillion”.

Privacy concerns not addressed

Gruber and other critics also say that privacy concerns have not been answered in the draft bill. This is particularly the case with those who are not offenders or suspects. “The definitions of victim, offender and suspect expand the reach of this bill to a broad range of potentially innocent individuals involved in the criminal justice system, while the Schedule and definition of ‘volunteers’ sweep a broad range of categories of innocent citizens into purview —including children and the mentally incapacitated.”

The ideal course would have been to pass a privacy law before the DNA bill but that’s unlikely to happen since the Attorney General recently argued that there was no fundamental right to privacy in a recent submission to the Supreme Court.

What the CDFD says: The CDFD, however, says that the index of volunteers' profiles will be built up with informed consent and kept anonymous.

Not equipped to collect, store samples

DNA evidence is only as good as the system in place to handle it. Even in Europe and the US, past mistakes have led to tighter regulations of laboratories and better oversight, although mistakes still occur. “If the police are not trained to prevent contamination of evidence at crime scenes and laboratories lack quality assurance, it would mean that DNA samples can be mixed up or contaminated,” says Wallace.

Is India in a position to ensure a stringent monitoring system? Anupama Raina, a forensics expert at the All India Institute of Medical Sciences, Delhi, says that forensic staff need to be trained before the bill is passed. “The DNA report is always full and final in the court of law. So we must make sure that only a person trained in DNA sample collection is allowed at the crime scene. In many crimes here, the investigating officer stores samples in a malkhana (godown).

These are sensitive samples and need to be kept at particular temperatures, with preservatives. There is not even a refrigerator in a police station. How can we expect to get the right data?” she says.

What the CDFD says: CDFD’s stand is that in half a million cases investigative leads have been obtained with the use of DNA profiling technology. “Concerns on quality assurance issues have to be tackled not by discarding the concepts themselves but by improving quality which is the proposed role of the DNA Profiling Board,”says Gowrishankar.

No time limit on retention of profiles

The CDFD and the DoB are still tying up loose ends as they get set to present the final draft this monsoon session of Parliament. The team is aware that the period of retention of DNA profiles of suspects in database is yet to be specified.

What the CDFD says: “This is an oversight,” admits Gowrishankar. “I am sure that this will be rectified before the Bill is passed.”

Crucial clues

The national DNA Data Bank will maintain the following indices:

1) A crime scene index

2) A suspects’ index

3) An offenders’ index

4) A missing persons’ index

5) Unknown deceased persons’ index

6) A volunteers’ index

