Centre for Internet and Society

The DNA Bill has a sequence of problems that need to be resolved

Shweta Mohandas and Elonnai Hickok — 2019-01-15T02:36:11Z

In its current form, it’s far from comprehensive and fails to adequately address privacy and security concerns.

The opinion piece was published by Newslaundry on January 14, 2019.

On January 9, Science and Technology Minister Harsh Vardhan introduced the DNA Technology (Use and Application) Regulation Bill, 2018, amidst opposition and questions about the Bill’s potential threat to privacy and the lack of security measures. The Bill aims to provide for the regulation of the use and application of DNA technology for certain criminal and civil purposes, such as identifying offenders, suspects, victims, undertrials, missing persons and unknown deceased persons. The Schedule of the Bill also lists civil matters where DNA profiling can be used. These include parental disputes, issues relating to immigration and emigration, and establishment of individual identity. The Bill does not cover the commercial or private use of DNA samples, such as private companies providing DNA testing services for conducting genetic tests or for verifying paternity.

The Bill has seen several iterations and revisions from when it was first introduced in 2007. However, after repeated expert consultations, the Bill even at its current stage is far from a comprehensive legislation. Experts have articulated concerns that the version of the Bill that was presented post the Puttaswamy judgement still fails to make provisions that fully uphold the privacy and dignity of the individual. The hurry to pass the Bill by pushing for it by extending the winter session and before the Personal Data Protection Bill is brought before Parliament is also worrying. The Bill was passed in the Lok Sabha with only one amendment: which changed the year of the Bill from 2018 to 2019.

Need for a better-drafted legislation

Although the Schedule of the Bill includes certain civil matters under its purview, some important provisions are silent on the procedure that is to be followed for these civil matters. For example, the Bill necessitates the consent of the individual for DNA profiling in criminal investigation and for identifying missing persons. However, the Bill is silent on the requirement for consent in all civil matters that have been brought under the scope of the Bill.

The omission of civil matters in the provisions of the Bill that are crucial for privacy is just one of the ways the Bill fails to ensure privacy safeguards. The civil matters listed in the Bill are highly sensitive (such as paternity/maternity, use of assisted reproductive technology, organ transplants, etc.) and can have a far-reaching impact on a number of sections of society. For example, the civil matters listed in the Bill affect women not just in the case of paternity disputes but in a number of matters concerning women including the Domestic Violence Act and the Prenatal Diagnostic Techniques Act. Other matters such as pedigree, immigration and emigration can disproportionately impact vulnerable groups and communities, raising raises concerns of discrimination and abuse.

Privacy and security concerns

Although the Bill makes provisions for written consent for the collection of bodily substances and intimate bodily substances, the Bill allows non-consensual collection for offences punishable by death or imprisonment for a term exceeding seven years. Another issue with respect to collection with consent is the absence of safeguards to ensure that consent is given freely, especially when under police custody. This issue was also highlighted by MP NK Premachandran when he emphasised that the Bill be sent to a Parliamentary Standing Committee.

Apart from the collection, the Bill fails to ensure the privacy and security of the samples. One such example of this failure is Section 35(b), which allows access to the information contained in the DNA Data Banks for the purpose of training. The use of these highly sensitive data—that carry the risk of contamination—for training poses risks to the privacy of the people who have deposited their DNA both with and without consent.

An earlier version of the Bill included a provision for the creation of a population statistics databank. Though this has been removed now, there is no guarantee that this provision will not make its way through regulation. This is a cause for concern as the Bill also covers certain civil cases including those relating to immigration and emigration.

Conclusion

In July 2018, the Justice Sri Krishna Committee released the draft Personal Data Protection Bill. The Bill was open for public consultation and is now likely to be introduced in Parliament in June. The PDP Bill, while defining “sensitive personal data”, provides an exhaustive list of data that can be considered sensitive, including biometric data, genetic data and health data. Under the Bill, sensitive personal data has heightened parameters for collection and processing, including clear, informed, and specific consent. Ideally, the DNA Bill should be passed after ensuring that it is in line with the PDP Bill.

The DNA Bill, once it becomes a law, will allow for law enforcement authorities to collect sensitive DNA data and database the same for forensic purposes without a number of key safeguards in place with respect to security and the rights of individuals. In 2016 alone, 29,75,711 crimes under various provisions the Indian Penal Code were reported. One can only guess the sheer number of DNA profiles and related information that will be collected from both criminal and specified civil cases. The Bill needs to be revised to reduce all ambiguity with respect to the civil cases, and also to ensure that it is in line with the data protection regime in India. A comprehensive privacy legislation should be enacted prior to the passing of this Bill.

There are still studies and cases that show that DNA testing can be fallible. The Indian government needs to ensure that there is proper sensitisation and training on the collection, storage and use of DNA profiles as well as the recognition and awareness of the fact that the DNA tests are not infallible amongst key stakeholders, including law enforcement and the judiciary.

For more details visit https://cis-india.org/internet-governance/blog/newslaundry-elonnai-hickok-and-shweta-mohandas-january-14-2019-dna-bill-has-a-sequence-of-problems-that-need-to-be-resolved

DNA ‘Evidence’: Only Opinion, Not Science, And Definitely Not Proof Of Crime!

Elonnai Hickok and Murali Neelakantan — 2018-08-22T00:43:54Z

On August 9, 2018, the DNA Technology (Use and Application) Regulation Bill, 2018 was introduced in the Lok Sabha and we commented on some key aspects of it earlier.

The article was published in Bloomberg Quint on August 20, 2018.

Though taking some steps in the right direction such as formalising the process for lab accreditation, the Bill ignores many potential cases of ‘harm’ that may arise out of the collection, databasing, and using DNA evidence for criminal and civil purposes.

DNA evidence is widely touted as the most accurate forensic tool, but what is not widely publicised is it is not infallible. From crime scene to database, it is extremely vulnerable to a number of different unknown variables and outcomes. These variables are only increasing as the technology becomes more precise – profiles can be developed from only a few cells and technology now exists that generates a profile in 90 minutes. Primary and secondary transfer, contamination, incomplete samples, too many mixed samples, and inaccurate or outdated methods of analysis and statistical methodologies that may be used, are all serious reasons as to why DNA evidence may paint an innocent person guilty.

Importantly, DNA itself is not static and predicting how it may have changed over time is virtually impossible.

Innocent, But Charged

In April 2018, WIRED carried a story of Lukis Anderson who was charged with the first-degree murder of Raveesh Kumra, a Silicon Valley investor after investigators found Anderson’s DNA on Kumra’s nails. Long story short – Anderson earlier that day had been intoxicated in public and had been attended by paramedics. The same paramedics handled Kumra’s body and inadvertently transferred Anderson’s DNA to Kumra’s body. The story quotes some sobering facts that research has found about DNA:

Direct contact is not necessary for DNA to be transferred. In an experiment with a group of individuals sharing a bottle of juice, 50 percent had another’s DNA on their hand and ⅓rd of the glasses contained DNA from individuals that did not have direct contact with them.
An average person sheds 50 million skin cells a day.
Standing still our DNA can travel over a yard away and will be easily carried over miles on others clothing or hair, for example not very differently from pollen.
In an experiment that tested public items, it was found that items can contain DNA from a half-dozen people.
A friendly or inadvertent contact can transfer DNA to private regions or clothing.
Different people shed detritus at different levels that contain DNA.
One in five has some other person’s DNA under the fingernails on a continuous basis.

A police office carries crime scene tape in Alexandria, Virginia, U.S. (Photographer: Andrew Harrer/Bloomberg)

In another case, the police in Idaho, USA, used a public DNA database to run a familial DNA search – a technique used to identify suspects whose DNA is not recorded in a law enforcement database, but whose close relatives have had their genetic profiles cataloged, just as India's DNA Bill seeks to do. The partial match that resulted implicated Michael Usry, the son of the man whose DNA was in the public database. It took 33 days for Michael to be cleared of the crime. That an innocent man only spent 33 days under suspicion could be considered a positive outcome when compared to the case of Josiah Sutton who spent four years convicted of rape in prison due to misinterpretation of DNA samples by the Houston Police Department Crime Laboratory, which is among the largest public forensic centers in Texas. The Atlantic called this out as “The False Promise of DNA Testing – the forensic technique is becoming ever more common and ever less reliable”.

Presently, there is little confidence that such safeguards exist – prosecutors do not share any exculpatory evidence with the accused and India does not even follow the ‘fruit of a poisonous tree’ doctrine with respect to the admissibility of evidence and India has yet to develop a robust jurisprudence for evaluating scientific evidence.

The 2015 Law Commission Report cites four cases that speak to the role and reliance on expert opinion as evidence. Though these cases point to the importance of expert opinion they differ on the weight that should be given to the same. International best practice requires the submission of corroborating evidence, training law enforcement, and court officers, and ensuring that prosecution and defence have equal access to forensic evidence.

Consider India with a population of 1.3 billion people – 70 percent mostly residing in rural areas and less educated and a heavy migrant population in urban centres, an overwhelmed police force in nascent stages of forensic training, and an overburdened judiciary and no concrete laws to govern issues of the admissibility of forensic techniques.

In such circumstances, the question is not only how many criminals can be convicted but also how many innocents could be convicted.

A pair of standard issue handcuffs sits on a table. (Photographer: Jerome Favre/Bloomberg)

The DNA Bill seeks to establish DNA databanks at the regional and national level but how this will be operationalised is not quite clear. The Bill enables the DNA Regulatory Board to accredit DNA labs. Will databases be built from scratch? Will they begin by pulling in existing databases?

The question is not if the DNA samples match but how they came to match. The greater power that comes from the use of DNA databases requires greater responsibility in ensuring adequate information, process, training, and laws are in place for everyone – those who give DNA, collect DNA, store DNA, process DNA, present DNA, and eventually decide on the use of the DNA. As India matures in its use of DNA evidence for forensic purposes it is important that it keeps at the forefront what is necessary to ensure and protect the rights of the individual.

Elonnai Hickok Chief Operating Officer at The Centre for Internet and Society. Murali Neelakantan is an expert in healthcare laws, and the author of ‘DNA Testing as Evidence - A Judge’s Nightmare’ in the Journal of Law and Medicine.

For more details visit https://cis-india.org/internet-governance/blog/bloomberg-quint-elonnai-hickok-and-murali-neelakantan-august-20-2018-dna-evidence-only-opinion-not-science-and-definitely-not-proof-of-crime

Human DNA Profiling Bill 2012 v/s 2015 Bill

vanya — 2015-09-06T14:10:26Z

This entry analyses the Human DNA Profiling Bill introduced in 2012 with the provisions of the 2015 Bill

A comparison of changes that have been introduced in the Human DNA Profiling Bill, June 2015.

Definitions:

1. 2012 Bill: The definition of "analytical procedure" was included under clause 2 (1) (a) and was defined as an orderly step by step procedure designed to ensure operational uniformity.

2015 Bill: This definition has been included under the Explanation under clause 22 which provides for measures to be taken by DNA Laboratory.

2. 2012 Bill: The definition of "audit" was earlier defined under clause 2 (1) (b) and was defined as an inspection used to evaluate, confirm or verify activity related to quality.

2015 Bill: This definition has been included under the Explanation under clause 22 which provides for measures to be taken by DNA Laboratory.

3. 2012 Bill: There was no definition of "bodily substance".

2015 Bill: Clause 2(1) (b) defines bodily substance to be any biological material of or from a body of the person (whether living or dead) and includes intimate/non-intimate body samples as well.

4. 2012 Bill: The definition of "calibration" was included under clause 2 (1) (d) in the previous Bill.

2015 Bill: The definition has been removed from the definition clause and has been included as an explanation under clause 22.

5. 2012 Bill: Previously "DNA Data Bank" was defined under clause 2(1)(h) as a consolidated DNA profile storage and maintenance facility, whether in computerized or other form, containing the indices as mentioned in the Bill.

2015 Bill: However, in this version, the definition has been briefed under clause 2(1) (f) to mean as a DNA Data Bank as established under clause 24.

6. 2012 Bill: Previously a "DNA Data Bank Manager" was defined clause 2(1) (i) as the person responsible for supervision, execution and maintenance of the DNA Data Bank.

2015 Bill: In the new Bill, it is defined clause 2(1) (g) as a person appointed under clause 26.

7. 2012 Bill: Under clause 2(1) (j), the definition of "DNA laboratory" was defined to be any laboratory established to perform DNA procedures.

8. 2015 Bill: Under clause 2(1) (h) "DNA laboratory" has been now defined to be any laboratory established to perform DNA profiling.

9. 2012 Bill: "DNA procedure" was defined under clause 2(1) (k) as a procedure to develop DNA profile for use in the applicable instances as specified in the Schedule.

2015 Bill: This definition has been removed from the Bill.

10. 2012 Bill: There was no definition of "DNA Profiling".

2015 Bill: DNA profiling has been defined under clause 2(1) (j) as a procedure to develop DNA profile for human identification.

11. 2012 Bill: "DNA testing" was defined under clause 2(1) (n) as the identification and evaluation of biological evidence using DNA technologies for use in the applicable instances.

2015 Bill: This definition has been removed.

12. 2012 Bill: "forensic material" was defined under clause 2(1) (o) as biological material of or from the body of a person living or dead, and representing an intimate body sample or non-intimate body sample.

2015 Bill: This definition has been included under the definition of "bodily substance" under clause 2(1) (b).

13. 2012 Bill: "intimate body sample" was defined under clause 2(1) (q).

2015 Bill: This has been removed from the definitions clause and has been included as an explanation under clause 23 which addresses sources and manner of collection of samples for DNA profiling.

14. 2012 Bill: "intimate forensic procedure" was defined under 2(1) (r).

2015 Bill: This has been removed from the definitions clause and has been included as an explanation under clause 23 which addresses sources and manner of collection of samples for DNA profiling.

15. 2012 Bill: "non-intimate body sample" was defined under clause 2(1) (v) in 2012 Bill.

2015 Bill: The definition of "non-intimate body sample" has not been included in the definitions clause and has been included as an Explanation under clause 23 which addresses sources and manner of collection of samples for DNA profiling.

16. 2012 Bill: "non-intimate forensic procedure" was defined under clause 2(1) (w) in 2012 Bill.

2015 Bill: The definition of "non-intimate forensic procedure" has not been included in the definitions clause and has been included as an Explanation under clause 23 which addresses sources and manner of collection of samples for DNA profiling.

17. 2012 Bill: "undertrial" was defined under clause 2(1) (zk) as a person against whom a criminal proceeding is pending in a court of law.

2015 Bill: The definition now states such a person against whom charges have been framed for a specified offence in a court of law under clause 2(1) (zc).

DNA Profiling Board:

1. 2012 Bill: Under clause 4 (a), the Bill stated that a renowned molecular biologist must be appointed as the Chairperson.

2015 Bill: Under clause 4 addressing Composition of the Board, the Bill states that the Board shall consist of a Chairperson who shall be appointed by the Central Government and must have at least fifteen years' experience in the field of biological sciences.

2. 2012 Bill: Under clause 4 (i), the Chairman of National Bioethics Committee of Department of Biotechnology, Government of India was to be included as a member under the DNA Profiling Board.

2015 Bill: This member has been removed from the composition.

3. 2012 Bill: Under clause 4 (m), the term of 1 person from the field of genetics was not mentioned in the 2012 Bill.

2015 Bill: In this Bill under clause 4 (m), it has been stated that such a person must have minimum experience of twelve years in the field.

4. 2012 Bill: The term of 2 people from the field of biological sciences was not mentioned in the 2012 Bill under clause 4 (l).

2015 Bill: Under clause 4 (l), it has been stated that such 2 people must have minimum experience of twelve years in the field.

5. The following members have been included in the 2015 Bill-

i. Chairman of National Human Rights Commission or his nominees, as an ex-officio member under clause 4 (a).

ii. Secretary to Government of India, Ministry of Law and Justice or his nominees (not below rank of Joint Secretary), as an ex-officio member under clause 4 (b).

6. 2012 Bill: Under clause 5, the term of the members was not uniform and varied for all members.

2015 Bill: The term of people from the field of biological sciences and the person from the field of genetics has been states to be five years from the date of their entering upon the office, and would be eligible for re-appointment for not more than 2 consecutive terms.

Also, the age of a Chairperson or a member cannot exceed seventy years.

The term of members under clauses (c), (f), (h), and (i) of clause 4 is 3 years and for others the term shall continue as long as they hold the office.

Chief Executive Officer:

2012 Bill: Earlier it was stated in the Bill under clause 10 (3) that such a person should be a scientist with understanding of genetics and molecular biology.

2015 Bill: The Bill states under clause 11 (3) that the CEO shall be a person possessing qualifications and experience in science or as specified under regulations. The specific experience has been removed.

A new clause- 12(5) addresses power of the Board to co-opt the number of people for attending the meetings and take part in proceedings; however such a person shall be devoid of voting rights. Also, such a person shall be entitled to specified allowances for attending the meetings.

Officers and Other Employees of Board:

2012 Bill: The Bill stated under clause 11 (3) that the Board may appoint consultants required to assist in the discharge of its functions on such terms and conditions as may be specified by the regulations.

2015 Bill: The 2015 Bill states under clause 12 (3) that the Board may appoint experts to assist for discharging its functions and may hold consultations with people whose rights may be affected by DNA profiling.

Functions of the Board:

2012 Bill: 26 functions were stated in the 2012 Bill.

2015 Bill: The number of the functions has been reduced to 22 with a few changes based on recommendations of Expert Committee.

Power of Board to withdraw approval:

2015 Bill: The circumstances in which the Board could withdraw its approval have not been changed from the 2012 Bill (previously under clause 16). There's an addition to the list as provided under clause 17 (1) (d) wherein the Board can also withdraw its approval in case the DNA laboratory fails to comply with any directions issued by the DNA Profiling Board or any such regulatory Authority under any other Act.

Obligations of DNA Laboratory:

2015 Bill: There is an addition to the list of obligations to be undertaken by a DNA laboratory under clause 19 (d). The laboratory has an additional obligation to share the DNA data prepared and maintained by it with the State DNA Data Bank and the National DNA Data Bank.

Qualification and experience of Head, technical and managerial staff and employees of DNA Laboratory:

2012 Bill: The previous Bill clearly mandated under clause 19 (2) the qualifications of the Head of every DNA laboratory to be a person possessing educational qualifications of Doctorate in Life Sciences from a recognised University with knowledge and understanding of the foundation of molecular genetics as applied to DNA work and such other qualifications as may be specified by regulations made by the Board.

2015 Bill: The provision has been generalized and provides under clause 20 (1) for a person to be possess the specified educational qualifications and experience.

Measures to be taken by DNA Laboratory:

2012 Bill: In the previous Bill, there were separate clauses with regard to security, minimization of contamination, evidence control system, validation process, analytical procedure, equipment calibration and maintenance, audits of laboratory to be followed by a DNA Laboratory.

2015 Bill: In the 2015 Bill, these measures to be adopted by DNA Laboratory have been included under one clause itself-clause 22.

Infrastructure and training:

2012 Bill: The specific provisions regarding infrastructure, fee, recruitment, training and installing of security system in the DNA Laboratory were present in the Bill under clauses 28-31.

2015 Bill: These provisions have been removed from the 2015 Bill.

Sources and manner of collection of samples for DNA profiling:

2012 Bill: Part II of the Schedule in the Bill provided for sources and manner of collection of samples for DNA Profiling.

The sources include: Tissue and skeleton remains and Already preserved body fluids and other samples.

Also, it provided for a list of the manner in which the profiling can be done:

(1) Medical Examination (2) Autopsy examination (3) Exhumation

Also, provision for collection of intimate and non-intimate body samples was provided as an Explanation.

2015 Bill: Under Clause 23, the sources include bodily substances and other sources as specified in Regulations. The other sources remain unchanged.

Also, provision for collection of intimate and non-intimate body samples is addressed in clause 23(2).

The explanation to the provision states what would be implied by the terms medical practitioner, intimate body sample, intimate forensic procedure, non-intimate body sample and non-intimate forensic procedure.

DNA Data Bank:

- Establishment:

2012 Bill: The Bill did not specify any location for establishment of the National DNA Data Bank.

2015 Bill: The Bill states under clause 24 (1) that the Central Government shall establish a National DNA Data Bank at Hyderabad.

-Maintenance of indices of DNA Data Bank:

2012 Bill: Apart from the DNA profiles, every DNA Data Bank shall contain the identity of the person from whose body the substances are taken in case of a profile in the offenders' index as under clause 32 (6) (a).

2015 Bill: Clause 25 (2) (a) states that the DNA Data Bank shall contain the identity for the suspects' or offenders' index.

DNA Data Bank Manager:

2012 Bill: The Bill States under clause 33 (1) that a DNA Data Bank Manger shall be appointed for conducting all operations of the National DNA Data Bank. The functions were not specific.

2015 Bill: The Bill states under clause 26 (1) specifically that a DNA Data Bank Manger shall be appointed for the purposes of execution, maintenance and supervision of the National DNA Data Bank.

- Qualification:

2012 Bill: In the previous Bill, it was stated under clause 33 (3) that the DNA Data Bank Manager must be a scientist with understanding of computer applications and statistics.

2015: The Bill states under clause 26 (2) that the DNA Data Bank Manager must possess educational qualification in science and any such experience as prescribed by the regulations.

Officers and other employees of the National DNA Data Bank:

2012 Bill: The Bill stated under clause 34 (3) that the Board may appoint consultants required to assist in the discharge of the functions of the DNA Data Banks.

2015 Bill: The Bill provides under clause 27 (3) that the Board may appoint experts required to assist in the discharge of the functions of the DNA Data Banks

Comparison and Communication of DNA profiles:

2015 Bill: The New Bill specifically addresses comparison and communication the DNA profiles as that in the offenders' or crime scene index under clause 28 (1). Also, there is an additional provision under clause 29 (3) which states that the National DNA Data Bank Manger may communicate a DNA profile through Central Bureau of Investigation on request of a court, tribunal, law enforcement agency or DNA laboratory to the Government of a foreign State, an international organization or institution of Government.

Use of DNA profiles and DNA samples and records:

2012 Bill: The Bill provided under clause 39 that all DNA profiles, samples and records would be used solely for purpose of facilitating identification of perpetrator of an offence as listed under the Schedule. The proviso to this provision addressed the fact that such samples could be used to identify victims of accidents or disaster or missing persons, or any purpose of civil dispute.

2015 Bill: The Bill restricts the use of all DNA profiles, samples and records solely for purpose of facilitating identification of a person under the Act under clause 32.

DNA Profiling Board Fund:

2012 Bill: The Bill stated under clause 47 (2) that the financial power for the application of monies of the Fund shall be delegated to the Board in such manner as may be prescribed and as may be specified by the regulations made by the Board.

Also, the Bill stated that the Fund shall be applied for meeting remuneration requirements to be paid to the consultants under clause 47 (3) (c).

2015 Bill: This provision has not been included in the Bill. Also, the Bill does not include the provision of paying the remuneration to the experts from the Fund.

Delegation of Powers:

2012 Bill: The Bill provided under clause 61 that The Board may delegate its powers and functions to the Chairperson or any other Member or officer of the Board subject to such conditions, if necessary.

2015 Bill: This provision has not been included in the 2015 Bill.

Powers of Board to make rules:

2012 Bill: The Bill provided for an exhaustive list consisting of 33 powers listed under clause 65.

2015 Bill: The Bill provides for a list of 27 powers of the Board under clause 57.

Schedule:

2012 Bill: In the list of offense where human DNA profiling would be applicable, there was an inclusion of any law as may be specified by the regulations made by the Board.

2015 Bill: This provision has been removed from the 2015 Bill.

For more details visit https://cis-india.org/internet-governance/blog/human-dna-profiling-bill-2012-vs-2015

CIS Comments and Recommendations to the Human DNA Profiling Bill, June 2015

Elonnai Hickok, Vipul Kharbanda and Vanya Rakesh — 2015-09-02T17:09:04Z

The Centre for Internet & Society (CIS) submitted a clause-by-clause comments on the Human DNA Profiling Bill that was circulated by the Department of Biotechnology on June 9, 2015.

The Centre for Internet and Society is a non-profit research organisation that works on policy issues relating to privacy, freedom of expression, accessibility for persons with diverse abilities, access to knowledge, intellectual property rights and openness. It engages in academic research to explore and affect the shape and form of Internet, along with its relationship with the Society, with particular emphasis on South-South dialogues and exchange. The Centre for Internet and Society was also a member of the Expert Committee which was constituted in the year 2013 by the Department of Biotechnology to discuss the draft Human DNA Profiling Bill.

Missing aspects from the Bill

The Human DNA Profiling Bill, 2015 has overlooked and has not touched upon the following crucial factors :

Objects Clause

An ‘objects clause,’ detailing the intention of the legislature and containing principles to inform the application of a statute, in the main body of the statute is an enforceable mechanism to give directions to a statute and can be a formidable primary aid in statutory interpretation. [See, for example, section 83 of the Patents Act, 1970 that directly informed the Order of the Controller of Patents, Mumbai, in the matter of NATCO Pharma and Bayer Corporation in Compulsory Licence Application No. 1 of 2011.] Therefore, the Bill should incorporate an objects clause that makes clear that

“DNA profiles merely estimate the identity of persons, they do not conclusively establish unique identity, therefore forensic DNA profiling should only have probative value and not be considered as conclusive proof.

The Act recognises that all individuals have a right to privacy that must be continuously weighed against efforts to collect and retain DNA and in order to protect this right to privacy the principles of notice, confidentiality, collection limitation, personal autonomy, purpose limitation and data minimization must be adhered to at all times.”

Collection and Consent

The Bill does not contain provisions regarding instances when the DNA samples can be collected from the individuals without consent (nor does the Bill establish or refer to an authorization procedure for such collection), when DNA samples can be collected from individuals only with informed consent, and how and in what instances individuals can withdraw their consent. The issue of whether DNA samples can be collected without the consent of the individual is a vexed one and requires complex questions relating to individual privacy as well as the right against self incrimination. While the question of whether an accused can be made to give samples of blood, semen, etc. which had been in issue in a wide gamut of decisions in India has finally been settled by section 53 of the Code of Criminal Procedure, which allows collection of medical evidence from an accused, thus laying to rest any claims based on the right against self incrimination. However there are still issues dealing with the right to privacy and the violation thereof due to the non-consensual collection of DNA samples. This is an issue which needs to be addressed in this Act itself and should not be left unaddressed as this would only lead to a lack of clarity and protracted court cases to determine this issue. An illustration of this problem is where the Bill allows for collection of intimate body samples. There is a need for inclusion of stringent safeguard measures regarding the same since without such safeguards, the collection of intimate body samples would be an outright infringement of privacy. Further, maintaining a database for convicts and suspects is one thing, however collecting and storing intimate samples of individuals is a gross violation of the citizens’ right to privacy, and without adequate mechanisms regarding consent and security, stands at a huge risk of being misused.

Privacy Safeguards

Presently, the Bill is being introduced without comprehensive privacy safeguards in place on issues such as consent, collection, retention, etc. as is evident from the comments made below. Though the DNA Board is given the responsibility of recommending best practices pertaining to privacy (clause 13 (l)) – this is not adequate given the fact that India does not have a comprehensive privacy legislation. Though section 43A and associated Rules of the Information Technology Act would apply to the collection, use, and sharing of DNA data by DNA laboratories (as they would fall under the definition of ‘body corporate’ under the IT Act), the National and State Data Banks and the DNA Board would not clearly be body corporate as per the IT Act and would not fall under the ambit of the provision or Rules. Safeguards are needed to protect against the invasion of informational privacy and physical privacy at the level of these State controlled bodies. The fact that the Bill is to be introduced into Parliament prior to the enactment of a privacy legislation in India is significant as according to discussions in the Record Notes of the 4h Meeting of the Expert Committee - “the Expert Committee also discussed and emphasized that the Privacy Bill is being piloted by the Government. That Bill will over-ride all the other provisions on privacy issues in the DNA Bill.”

Lack of restriction on type of analysis to be performed

The Bill currently does not provide any restriction on the types of analysis that can be performed on a DNA sample or profile. This could allow for DNA samples to be analyzed for purposes beyond basic identification of an individual – such as for health, genetic, or racial purposes. As a form of purpose limitation the Bill should define narrowly the types of analysis that can be performed on a DNA sample.

Purpose Limitation

The Bill does not explicitly restrict the use of a DNA sample or DNA profile to the purpose it was originally collected and created for. This could allow for the re-use of samples and profiles for unintended purposes.

Annual Public Reporting

The Bill does not require the DNA Board to disclose publicly available information on an annual basis regarding the functioning and financial aspects of matters contained within the Bill. Such disclosure is crucial in ensuring that the public is able to make informed decisions. Categories that could be included in such reports include: Number of DNA profiles added to each indice within the databank, total number of DNA profiles contained in the database, number of DNA profiles deleted from the database, the number of matches between crime scene DNA profiles and DNA profiles, the number of cases in which DNA profiles were used in and the percentage in which DNA profiles assisted in the final conclusion of the case, and the number and categories of DNA profiles shared with international entities.

Elimination Indice

An elimination indice containing the profiles of medical professionals, police, laboratory personnel etc. working on a case is necessary in case they contaminate collected samples by accident.

Clause by Clause Recommendations

As stated the Human DNA Profiling Bill 2015 is to regulate the use of DNA analysis of human body substances profiles and to establish the DNA Profiling Board for laying down the standards for laboratories, collection of human body substances, custody trail from collection to reporting and also to establish a National DNA Data Bank.

Comment:

As stated, the purpose of the DNA Human Profiling Bill is to broadly regulate the of DNA analysis and establish a DNA Data Bank. Despite this, the majority of provisions in the Bill pertain to the collection, use, access etc. of DNA samples and profiles for civil and criminal purposes. The result of this is an 'unbalanced Bill' - with the majority of provisions focusing on issues related to forensic use. At the same time the Bill is not a comprehensive forensic bill – resulting in legislative gaps.
Additionally, the Bill contains provisions beyond the stated purpose. These include:

Facilitating the creation of a Data Bank for statistical purposes (Clause 33(e))
Establishing state and regional level databanks in addition to a national level databank (Clause 24)
Developing procedure and providing for the international sharing of DNA profiles with foreign Governments, organizations, institutions, or agencies. (Clause 29)

Recommendation:

The Bill should ideally be limited to regulating the use of DNA samples and profiles for criminal purposes. If the scope remains broad, all purposes should be equally and comprehensively regulated.
The stated purpose of the Bill should address all aspects of the Bill. Provisions beyond the scope of the Bill should be removed.

Chapter 1: Preliminary

Clause 2: This clause defines the terms used in the Bill.

Comment: A number of terms are incomplete and some terms used in the Bill have not been included in the list of definitions.

Recommendation:

The definition of DNA Data bank manager - clause 2 (1)(g) - must be renamed as National DNA Data bank manager.
The definition of “DNA laboratory” in clause 2(1)(h) should refer to the specific clauses that empower the Central Government and State Governments to license and recognise DNA laboratories. This is a drafting error.

The definition of “DNA profile” in clause 2(1)(i) is too vague. Merely the results of an analysis of a DNA sample may not be sufficient to create an actual DNA profile. Further, the results of the analysis may yield DNA information that, because of incompleteness or lack of information, is inconclusive. These incomplete bits of information should not be recognised as DNA profiles. This definition should be amended to clearly specify the contents of a complete and valid DNA profile that contains, at least, numerical representations of 17 or more loci of short tandem repeats that are sufficient to estimate biometric individuality of a person. The definition of “DNA profile” does not restrict the analysis to forensic DNA profiles: this means additional information, such as health-related information could be analyzed and stored against the wishes of the individual, even though such information plays no role in solving crimes.

The term “known sample” that is defined in clause 2(1)(m) is not used anywhere outside the definitions clause and should be removed.

The definition of “offender” in clause 2(1)(q) is vague because it does not specify the offenses for which an “offender” needs to be convicted. It is also linked to an unclear definition of the term “under trial”, which does not specify the nature of pending criminal proceedings and, therefore, could be used to describe simple offenses such as, for example, failure to pay an electricity bill, which also attracts criminal penalties.

The term “proficiency testing” that is defined in clause 2(1)(t) is not used anywhere in the text of the DNA Bill and should be removed.

The definitions of “quality assurance”, “quality manual” and “quality system” serve no enforceable purpose since they are used only in relation to the DNA Profiling Board’s rule making powers under Chapter IX, clause 58. Their inclusion in the definitions clause is redundant. Accordingly, these definitions should be removed.

The term “suspect” defined in clause 2(1)(za) is vague and imprecise. The standard by which suspicion is to be measured, and by whom suspicion may be entertained – whether police or others, has not been specified. The term “suspect” is not defined in either the Code of Criminal Procedure, 1973 ("CrPC") or the Indian Penal Code, 1860 ("IPC").

The term volunteer defined in clause 2(zf) only addresses consent from the parent or guardian of a child or an incapable person. This term should be amended to include informed consent from any volunteer.

Chapter II: DNA Profiling Board

Clause 4: This clause addresses the composition of the DNA Profiling Board.

Comment: The size and composition of the Board that is staffed under clause 4 is extremely large. The number of members remains to be 15, as it was in the 2012 Bill.

Recommendation: Drawing from the experiences of other administrative and regulatory bodies in India, the size of the Board should be reduced to no more than five members. The Board must contain at least:

One ex-Judge or senior lawyer
Civil society – both institutional and non-institutional
Privacy advocates

Note: The reduction of the size of the Board was agreed upon by the Expert Committee from 16 members (2012 Bill) to 11 members. This recommendation has not been incorporated.

Clause 5(1): The clause specifies the term of the Chairperson of the DNA Profiling Board to be five years and also states that the person shall not be eligible for re-appointment or extension of the term so specified.

Comment: The Chairperson of the Board, who is first mentioned in clause 5(1), has not been duly and properly appointed.

Recommendation: Clause 4 should be amended to mention the appointment of the Chairperson and other Members.

Clause 7: The clause requires members to react on a case-by-case basis to the business of the Board by excusing themselves from deliberations and voting where necessary.

Comment: This clause addresses the issue of conflict of interest only in narrow cases and does not provide penalty if a member fails to adhere to the laid out procedure.

Recommendation: The Bill should require members to make full and public disclosures of their real and potential conflicts of interest and the Chairperson must have the power to prevent such members from voting on interested matters. Failure to follow such anti-collusion and anti-corruption safeguards should attract criminal penalties.

Clause 12(5): The clause states that the board shall have the power to co-opt such number of persons as it may deem necessary to attend the meetings of the Board and take part in the proceedings of the board, but such persons will not have the right to vote.

Comment: While serving on the Expert Committee, CIS provided language regarding how the Board could consult with the public. This language has not been fully incorporated.

Recommendation: As per the recommendation of CIS, the following language should be adopted in the Bill: The Board, in carrying out its functions and activities, shall be required to consult with all persons and groups of persons whose rights and related interests may be affected or impacted by any DNA collection, storage, or profiling activity. The Board shall, while considering any matter under its purview, co-opt or include any person, group of persons, or organisation, in its meetings and activities if it is satisfied that that person, group of persons, or organisation, has a substantial interest in the matter and that it is necessary in the public interest to allow such participation. The Board shall, while consulting or co-opting persons, ensure that meetings, workshops, and events are conducted at different places in India to ensure equal regional participation and activities.

Clause 13: The clause lays down the functions to be performed by the DNA Profiling Board, which includes it’s role in regulation of the DNA Data Banks, DNA Laboratories and techniques to be adopted for collection of the DNA samples.

Comment: While serving on the Expert Committee, CIS recommended that the functions of the DNA Profiling Board should be limited to licensing, developing standards and norms, safeguarding privacy and other rights, ensuring public transparency, promoting information and debate and a few other limited functions necessary for a regulatory authority.

Furthermore, this clause delegates a number of functions to the Board that places the Board in the role of a manager and regulator for issues pertaining to DNA Profiling including functions of the DNA Databases, DNA Laboratories, ethical concerns, privacy concerns etc.

Recommendation: As per CIS’s recommendations the functions of the Board should be limited to licensing, developing standards and norms, safeguarding privacy and other rights, ensuring public transparency, promoting information and debate and a few other limited functions necessary for a regulatory authority.

Towards this, the Board should be comprised of separate Committees to address these different functions. At the minimum, there should be a Committee addressing regulatory issues pertaining to the functioning of Data Banks and Laboratories and an Ethics Committee to provide independent scrutiny of ethical issues. Additionally:

Clause 13(j) allows the Board to disseminate best practices concerning the collection and analysis of DNA samples to ensure quality and consistency. The process for collection of DNA samples and analysis should be established in the Bill itself or by regulations. Best practices are not enforceable and do not formalize a procedure.
Clause 13(q) allows the Board to establish procedure for cooperation in criminal investigation between various investigation agencies within the country and with international agencies. This procedure, at the minimum, should be subject to oversight by the Ministry of External Affairs.

Chapter III: Approval of DNA Laboratories

Clause 15: This clause states that every DNA Laboratory has to make an application before the Board for the purpose of undertaking DNA profiling and also for renewal.

Comment: Though the Bill requires DNA Laboratories to make an application for the undertaking DNA Profiling, it does not clarify that the Lab must receive approval before collection and analysis of DNA samples and profiles.

Recommendation: The Bill should clarify that all DNA Laboratories must receive approval for functioning prior to the collection or analysis of any DNA samples and profiles.

Chapter IV: Standards, Quality Control and Quality Assurance Obligations of DNA Laboratory and Infrastructure and Training

Clause 19: This clause defines the obligations of a DNA laboratory. Sub-section (d) maintains that one such obligation is the sharing of the 'DNA data' prepared and maintained by the laboratory with the State DNA Data Bank and the National DNA Data Bank.

Comment: ‘DNA Data’ is a new term that has not been defined under Clause 2 of the Bill. It is thus unclear what data would be shared between State DNA data banks and the National DNA data bank - DNA samples? DNA profiles? associated records? It is also unclear in what manner and on what basis the information would be shared.

Recommendation: The term ‘DNA Data’ should be defined to clarify what information will be shared between State and National DNA Data Banks. The flow of and access to data between the State DNA Data Bank and National DNA Data Bank should also be established in the Bill.

Clause 22: The clause lays down the measures to be adopted by a DNA Laboratory and 22(h) includes a provision requiring the conducting of annual audits according to prescribed standards.

Comment:

The definition of “audit” under Chapter VI in clause 22 under ‘Explanation’ is relevant for measuring the training programmes and laboratory conditions. However, the term “audit” is subsequently used in an entirely different manner in Chapter VII which relates to financial information and transparency.
The standards for the destruction of DNA samples have not been included within the list of measures that DNA laboratories must take.

Recommendation:

The definition of ‘audit’ must be amended or removed as it is being used in different contexts. The term “audit” has a well established use for financial information that does not require a definition.
Standards for the destruction of DNA samples should be developed and included as a measure DNA laboratories must take.
Clause 23: This clause lays down the sources for collection of samples for the purpose of DNA profiling. 23(1)(a) includes collection from bodily substances and 23(1)(c) includes clothing and other objects. Explanation (b) provides a definition of 'intimate body sample'.

Comment:

Permitting the collection of DNA samples from bodily substances and clothing and other objects allows for the broad collection of DNA samples without contextualizing such collection. In contrast 23(b) Scene of occurrence or scene of crime limits the collection of samples to a specific context.
This clause also raises the issue of consent and invasion of privacy of an individual. If “intimate body samples” are to be taken of individuals, then this would be an invasion of the person’s right to bodily privacy if such collection is done without the person’s consent (except in the specific instance when it is done in pursuance of section 53 of the Criminal Procedure Code).

Recommendation:

Sources for the collection of DNA samples should be contextualized to prevent broad, unaccounted for, or unregulated collection. Clause (a) and (c) should be deleted and replaced with contexts in which the collection DNA collection would be permitted.
The Bill should specify circumstances on which non-intimate samples can be collected and the process for the same.
The Bill should specify that intimate body samples can only be taken with informed consent except as per section 53 of the Criminal Procedure Code.
The Bill should require that any individual that has a sample taken (intimate and non-intimate) is provided with notice of their rights and the future uses of their DNA sample and profile.

Chapter V: DNA Data Bank

Clause 24:This clause addresses establishment of DNA Data Banks at the State and National Level. 24(5) establishes that the National DNA Data Bank will receive data from State DNA Data Banks and store the approved DNA Profiles as per regulations.

Comment:

As noted previously, ‘DNA Data’ is a new term that has not been defined in the Bill. It is thus unclear what data would be shared between State DNA data banks and the National DNA data bank - DNA samples? DNA profiles? associated records?
The process for sharing Data between the State and National Data Banks is not defined.

Recommendation:

The term ‘DNA Data’ should be defined to clarify what information will be shared between State and National DNA Data Banks.
The process for the National DNA Data Bank receiving DNA data from State DNA Data Banks and DNA laboratories needs to be defined in the Bill or by regulation. This includes specifying how frequently information will be shared etc.

Clause 25: This clause establishes standards for the maintenance of indices by DNA databanks. 25(1) states that every DNA Data Bank needs to maintain the prescribed indices for various categories of data including an index for a crime scene, suspects, offenders, missing persons, unknown deceased persons, volunteers, and other indices as may be specified by regulation. 25(2) states that in addition to the indices, the DNA Data Bank should contain information regarding each of the DNA profiles. It can either be the identity of the person from whose bodily substance the profile was derived in case of a suspect or an offender, or the case reference number of the investigation associated with such bodily substances in other cases. 25(3) states that the indices maintained shall include information regarding the data which is based on the DNA profiling and the relevant records.

Comment:

25(1): The creation of multiple indices cannot be justified and must be limited since collection of biological source material is an invasion of privacy that must be conducted only in strict conditions when the potential harm to individuals is outweighed by the public good. This balance may only be struck when dealing with the collection and profiling of samples from certain categories of offenders. The implications of collecting and profiling DNA samples from corpses, suspects, missing persons and others are vast. Specifically a 'volunteer' index could possibly be used for racial/community/religious profiling.
25(2): This clause requires the names of individuals to be connected to their profiles, and hence accessible to persons having access to the databank.
25(3) The clause states that only information related to DNA profiling and will be stored in an indice. Yet, it is unclear what such information might be. This could allow inconsistencies in data stored in an indice and could allow for unnecessary information to be stored on an indice.

Recommendation:

25(1) Ideally, DNA databanks should be created for dedicated purposes. This would mean that a databank for forensic purposes should contain only an offenders’ index and a crime scene index while a databank for missing persons would contain only a missing persons indice etc. If numerous indices are going to be contained in one databank, the Bill needs to recognize the sensitivity of each indice as well as the difference between each indice and lay down appropriate and strict conditions for collection of data for such indice, addition of data into the indice, as well as use, access, and retention of data within the indice.
25(2) DNA profiles, once developed, should be maintained with complete anonymity and retained separate from the names of their owners. This amendment becomes even more important if we consider the fact that an “offender” may be convicted by a lower court and have his profile included in the data bank, but may get acquitted later. However, till the time that such person is acquitted, his/her profile with the identifying information would still be in the data bank, which is an invasion of privacy.
25(3) What information will be stored in indices should be clearly defined in the Bill and should be tailored appropriately to each category of indice.

Clause 28: This clause addresses the comparison and communication of DNA profiles. 28(1) states that the DNA profile entered in the offenders or crime scene index shall be compared by the DNA Data Bank Manger against profiles contained in the DNA Data Bank and the DNA Data Bank Manager will communicate such information with any court, tribunal, law enforcement agency, or approved DNA laboratory which he may consider appropriate for the purpose of investigation. 28(2) allows for any information relating to a person's DNA profile contained in the suspect's index or offenders' index to be communicated to authorised persons.

Comment:

28(1) (a-c) allows for the DNA Bank Manager to communicate the following: 1.) if the DNA profile is not contained in the Data Bank and what information is not contained, 2.) if the DNA profile is contained in the data bank and what information is contained, and if in the opinion of the Manager, 3.) the DNA profile is similar to one stored in the Databank. These options of communication are problematic as they 1. allow for all associated information to be communicated – even if such information is not necessary, 2.) Allows for the DNA Databank Manager to communicate that a profile is 'similar' without defining what 'similar' would constitute.
28(1) only addresses the comparison of DNA profiles entered into the offenders index or the crime scene index against all other profiles entered into the DNA Data Bank.
28(1) gives the DNA Data Bank manager broad discretion in determining if information should be communicated and requires no accountability for such a decision.
28(2) only addresses information in the suspect's and offender's index and does not address information in any other index.

Recommendation:

Rather than allowing for broad searches across the entire database, the Bill should be clear about which profiles can be compared against which indices. Such distinctions must take into consideration if a profile was taken on consent and what was consented to.
Ideally, the response from the DNA Databank Manager should be limited to a 'yes' or 'no' response and only further information should be revealed on receipt of a court order.
The Bill should define what constitutes 'similar'
A process for determining if information should be communicated should be established in the Bill and followed by the DNA Data Bank Manager. The Manager should also be held accountable through oversight mechanisms for such decisions. This is particularly important, as a DNA laboratory would be a private body.
Information stored in any index should be disclosed to only authorized parties.

Clause 29: This clause provides for comparison and sharing of DNA profiles with foreign Government, organisations, institutions or agencies. 29(1) allows the DNA Bank Manager to run a comparison of the received profile against all indices in the databank and communicate specified responses through the Central Bureau of Investigation.

Comment: This clause allows for international disclosures of DNA profiles of Indians through a procedure that is to be established by the Board (see clause 13(q))

Recommendation: The disclosure of DNA profiles of Indians with international entities should be done via the MLAT process as it is the typical process followed when sharing information with international entities for law enforcement purposes.

Clause 30: This clause provides for the permanent retention of information pertaining to a convict in the offenders’ index and the expunging of such information in case of a court order establishing acquittal of a person, or the conviction being set aside.

Comment: This clause addresses only the retention and expunging of records of a convict stored in the offenders index upon the receipt of a court order or the conviction being set aside. This implies that records in all other indices - including volunteers - can be retained permanently. This clause also does not address situations where an individuals DNA profile is added to the databank, but the case never goes to court.

Recommendation: The Bill should establish retention standards and deletion standards for each indice that it creates. Furthermore, the Bill should require the immediate destruction of DNA samples once a DNA profile for identification purposes has been created. An exception to this should be the destruction of samples stored in the crime scene index.

Chapter VI: Confidentiality of and Access to DNA Profiles, Samples, and Records

Clause 33: This provision lays down the cases and the persons to which information pertaining to DNA profiles, samples and records stored in the DNA Data Bank shall be made available. Specifically, 33(e) permits disclosure for the creation and maintenance of a population statistics Data Bank.

Comment:

This clause addresses disclosure of information in the DNA Data Bank, but does not directly address the use of DNA samples or DNA profiles. This allows for the possibility of re-use of samples and profiles.
There is no limitation on the information that can be disclosed. The clause allows for any information stored in the Data Bank to be disclosed for a number of circumstances/to a variety of people.
There is no authorization process for the disclosure of such information. Of the circumstances listed – an authorization process is mentioned only for the disclosure of information in the case of investigations relating to civil disputes or other civil matters with the concurrence of the court. This implies that there is no procedure for authorizing the disclosure of information for identification purposes in criminal cases, in judicial proceedings, for facilitating prosecution and adjudication of criminal cases, for the purpose of taking defence by an accused in a criminal case, and for the creation and maintenance of a population statistics Data Bank.

Recommendation:

The Bill should establish an authorization process for the disclosure of information stored in a data bank. This process must limit the disclosure of information to what is necessary and proportionate for achieving the requested purpose.
Clause 33(e) should be deleted as the non-consensual disclosure of DNA profiles for the study of population genetics is specifically illegal. The use of the database for statistical purposes should be limited to purposes pertaining to understanding effectiveness of the databank.
Clause 33(f) should be deleted as it is not necessary for DNA profiles to be stored in a database to be useful for civil purposes. Instead samples for civil purposes are only needed as per the relevant case and specified persons.
Clause 33(g) should be deleted as it allows for the scope of cases in which DNA can be disclosed to by expanded as prescribed.

Clause 34: This clause allows for access to information for operation maintenance and training.
Comment: This clause would allow individuals in training access to data stored on the database for training purposes. This places the security of the databank and the data stored in the databank at risk.
Recommendation: Training of individuals should be conducted via simulation only.

Clause 35: This clause allows for access to information in the DNA Data Bank for the purpose of a one time keyboard search. A one time keyboard search allows for information from a DNA sample to be compared with information in the index without the information from the DNA sample being included in the index. The clause allows for an authorized individual to carry out such a search on information obtained from an DNA sample lawfully collected for the purpose of criminal investigation, except if the DNA sample was submitted for elimination purposes.
Comment: The purpose of this clause is unclear as is the scope. The clause allows for the sample to be compared against 'the index' without specifying which index. The clause also allows for 'information obtained from a DNA sample' rather than a profile. Thus, the clause appears to allow for any information derived from a DNA sample collected for a criminal investigation to be compared against all data within the databank – without recording such information. Such a comparison is vast in scope and open to abuse.
Recommendation: To ensure that this provision is not used for conducting searches outside of the scope of the original purpose, only DNA profiles, rather than 'information derived from a sample' should be allowed to be compared, only the indices relevant to the sample should be compared, and the search should be authorized and justified.
Clause 36 : This clause addresses the restriction of access to information in the crime scene index if the individual is a victim of a specified offense or if the person has been eliminated as a suspect of an investigation.

Comment:

This clause only addresses restriction of access to the crime scene index and does not address restriction of access to other indices.
This clause only restricts access to the indice for certain category of individual and for a specific status of a person. Oddly, the clause does not include authorization or rank as a means for determining or restricting access.

Recommendation:

This clause should be amended to lay down standards for restriction of access for all indices.
Access to all information in the databank should be restricted by default and permission should be based on authorization rather than category or status of individual.

Clause 38: This clause sets out a post-conviction right related to criminal procedure and evidence.

Comment: This clause would fundamentally alter the nature of India’s criminal justice system, which currently does not contain specific provisions for post-conviction testing rights.

Recommendation: This clause should be deleted and the issue of post conviction rights related to criminal procedure and evidence referenced to the appropriate legislation. Clause 38 is implicated by Article 20(2) of the Constitution of India and by section 300 of the CrPC. The principle of autrefois acquit that informs section 300 of the CrPC specifically deals with exceptions to the rule against double jeopardy that permit re-trials. [See, for instance, Sangeeta Mahendrabhai Patel (2012) 7 SCC 721.] The person must be duly accorded with a right to know rules may provide for- the authorized persons to whom information relating to a person’s DNA profile contained in the offenders’ index shall be communicated. Alternatively, this right could be limited only to accused persons who’s trial is still at the stage of production of evidence in the Trial Court. This suggestion is being made because unless the right as it currently stands, is limited in some manner, every convict with the means to engage a lawyer would ask for DNA analysis of the evidence in his/her case thereby flooding the system with useless requests risking a breakdown of the entire machinery.

Chapter VII: Finance, Accounts, and Audit

Clause 39: This clause allows the Central Government to make grants and loans to the DNA Board after due appropriation by Parliament.

Comment: This clause allows the Central Government to grant and loan money to the DNA Board, but does not require any proof or justification for the sum of money being given.

Recommendation: This clause should require a formal cost benefit analysis, and financial assessment prior to the giving of any grants or loans.

Chapter VIII: Offences and Penalties

Chapter IX: Miscellaneous

Clause 53: This clause allows protects the Central Government and the Members of the Board from suit, prosecution, or other legal proceedings for actions that they have taken in good faith.

Comment: Though it is important to take into consideration if an action has been taken in good faith, absolving the Government and Board from accountability for actions leaves little course of redress for the individual. This is particularly true as the Central Government and the Board are given broad powers under the Bill.

Recommended: If the Central Government and the Board will be protected for actions taken in good faith, their powers should be limited. Specifically, they should not have the ability to widen the scope of the Bill.

Clause 57: This clause states that the Central Government will have the powers to make Rules for a number of defined issues.

Comment: 57(d) allows for the regulations to be created regarding the use of population statistics Data Bank created and maintained for the purposes of identification research and protocol development or quality control.

Recommendation: 57(d) should be deleted as any use for the creation of a population statistics Data Bank created and maintained for the purposes of identification research and protocol development or quality control is beyond the scope of the Bill.

Clause 58: This clause empowers the Board to make regulations regarding a number of aspects related to the Bill.
Comment: There a number of functions that the Board can make regulations for that should be defined within the Bill itself to ensure that the scope of the Bill does not expand without Parliamentary oversight and approval.
Recommendation: 58(2)(g) should be deleted as it allows the Board to create regulations for other relevant uses of DNA techniques and technologies, 58(2)(u) should be deleted as it allows the Board to include new categories of indices to databanks, and 58(2) (aa) should be deleted as it allows the Board to decide which other indices a DNA profile may be compared with in the case of sharing of DNA profiles with foreign Governments, organizations, or institutions.

Clause 61: This clause states that no civil court will have jurisdiction to entertain any suit or proceeding in respect of any matter which the Board is empowered to determine and no injunction shall be granted.

Comment: This clause in practice will limit the recourse that individuals can take and will exclude the Board from the oversight of civil or criminal courts.

Recommendation: The power to collect, store and analyse human DNA samples has wide reaching consequences for people whose samples are being utilised for this purpose, specially if their samples are being labeled in specific indexes such as “index of offenders”, etc. The individual should therefore have a right to approach the court of law to safeguard his/her rights. Therefore this provision barring the jurisdiction of the courts should be deleted.

Schedule

Schedule A: The schedule refers to section 33(f) which allows for disclosure of information in relation to DNA profiles, DNA samples, and records in a DNA Data Bank to be communicated in cases of investigations relating to civil disputes or other civil matters or offenses or cases listed in the schedule with the concurrence of the court.

Comment: As 33(f) requires the concurrence of the court for disclosure of information, it is unclear what purpose the schedule serves. If the Schedule is meant to serve as a guide to the Court on appropriate instances for the disclosure of information stored in the DNA databank – the schedule is too general by listing entire Acts, while at the same time being too specific by naming specific Acts. Ideally, courts should use principles and the greater public interest to reach a decision as to whether or not disclosure of information in the DNA databank is appropriate. At a minimum these principles should include necessity (of the disclosure) and proportionality (of the type/amount of information disclosed).

Recommendation: As we recommended the deletion of clause 33(f) as it is not necessary to databank DNA profiles for civil purposes, the schedule should also be deleted.

Note: The schedule differs drastically from previous drafts and from discussions held in the Expert Committee and recommendations agreed upon. As per the Meeting Minutes of the Expert Committee meeting held on November 10th 2014 “The Committee recommended incorporation of the comments received from the members of the Expert Committee appropriately in the draft Bill...Point no. 1 suggested by Mr. Sunil Abraham in the Schedule of the draft Bill to define the cases in which DNA samples can be collected without consent by incorporating point no. 1 (I.e 'Any offence under the Indian Penal Code, 1860 if it is listed as a cognizable offence in Part I of the First Schedule of the code of Criminal Procedure, 1973)”

Download CIS submission here. See the cover letter here.

For more details visit https://cis-india.org/internet-governance/blog/cis-comments-and-recommendations-to-human-dna-profiling-bill-2015

Genetic Profiling: Is it all in the DNA?

praskrishna — 2015-09-13T09:47:17Z

A Bill seeks to make genetic profiling mandatory for the fight against crime—and generates a debate about the clash of ethics, freedom, science and data.

The article by Ullekh NP was published in Open Magazine on August 7, 2015. Sunil Abraham gave his inputs.

When British geneticist Sir Alec Jeffreys first developed the DNA profiling test 31 years ago in his laboratory at Leicester University, he didn’t help the police prove a man guilty. His test—back then it took weeks to complete DNA profiling procedures as opposed to a few hours now—proved that a rape suspect in police custody was innocent. Details from the whole exercise also subsequently helped the local police nab the real criminal, who had killed his teenaged rape victim. Later, the police found that he was the one who had committed a similar crime three years earlier in a village nearby. Britain was destined to make great gains in solving crimes thanks to DNA identification, while the rest of the developed world, including the US, caught up later, but only after lagging initially thanks to the relentless—and sometimes ill-founded—opposition from civil liberties activists. In India, the Human DNA Profiling Bill, 2015, a proposed law that envisages collecting DNA finger prints—which are unique to an individual—especially of criminals, has been in the making for the past 12 years. The draft bill, which will shortly be placed before the Union Cabinet for its nod, has been prepared by the Department of Biotechnology and the Centre for DNA Fingerprinting & Diagnostics (CDFD), a Hyderabad-based Central Government-run agency, after examining and reviewing submissions by a panel of experts, holding consultations with various stakeholders and getting responses from the public. Notwithstanding the claims of safeguards against any misuse of the intended DNA data base, activists, lawyers, internet freedom fighters, civil liberty activists and columnists have been up in arms against the Government, arguing that the DNA profiling bill is ill- conceived and naïve—to the extent that it would destroy an individual’s right to privacy as it lacks provisions to check data tampering.

The international experience has proved otherwise. Ever since Sir Jeffreys extracted DNA from human muscle tissue, identified and processed genetic markers (which are unique to individuals except in the case of identical twins) from what was until then considered ‘seemingly purposeless segments of the human DNA’ in the words of writers Peter Reinharz and Howard Safir, more than 500,000 ‘otherwise unsolvable’ cases have been solved in the developed world thanks to the DNA identification, note CDFD scientists. DNA is the hereditary material in the human body. It is found in blood, saliva, urine, strands of hair, semen, tears, skin, etcetera.

Dr Madhusudan Reddy Nandineni, staff scientist and group leader, laboratory of DNA fingerprinting services and laboratory of genomics and profiling applications, CDFD, is worried that opposition to the Bill is gaining momentum in India due to a raft of reasons. Of course, the West, too, has witnessed sharp protests against DNA profiling laws. One of the key reasons anti-profiling activists have an edge, says a senior Home Ministry official who asks not to be named, is that there is a “general public anxiety” over “anything to do with disclosing personal details”. He agrees that the tests are going to be intrusive, because muscle tissue may have to be collected from private parts. The procedure of DNA sample collection—as explained in the draft Bill submitted in January by a committee headed by TS Rao, senior adviser to the department of biotechnology—talks about obtaining intimate body samples of living persons (on page 6-7 of the 48- page document) from ‘the genital or anal area, the buttocks and also breasts in the case of a female’. According to the draft Bill, it also involves external examination of private parts, taking samples from pubic hair or by swabs or washing or by vacuum suction, by scraping or by lifting by tape and taking of a photograph or video recording of, or an impression or cast of a wound in those areas. “But then, it is par for the course,” says the Home Ministry official by way of justification.

American military historian and author Edward Luttwak agrees that DNA profiling is a significant intrusion into the “very body of a citizen”. That is the price one has to pay in the choice between liberty and equality before investigation, he posits. Luttwak is glad that in the US, as well as in other countries that have such profiling laws, DNA identification has yielded results. “It protects suspicious/ low status but innocent people from false accusations and helps to catch clever/high-status law-breakers,” he says.

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For his part, Dr Nandineni says that every aspect of the Human DNA Profiling Bill for India is based on similar legislation that has already been implemented in the US, Canada, UK, Australia and Continental Europe for more than 20 years. He also contends that the benefits that have accrued there are enormous, which India has missed out on for all these years. “In all these countries, the concerns of the general public on privacy matters have been allayed in their legislation,” he adds. He points out that the retention of DNA profiles in a ‘DNA Data Bank’ is meant to apprehend repeat offenders and thus serve a larger societal good. As regards privacy concerns, Dr Nandineni says that consultations on the preparations of the Bill lasted for 2-3 years and took into account the views of an expert committee whose members included representatives of NGOs.

Dr Nandineni is of the view that the opponents of the Bill have managed to get an upper hand in a national debate thanks to their media-savvy backgrounds. Agrees the Home Ministry official: “Perhaps the drafters of the Bill have not been communicative enough in getting their points across to the public and the media. Which might explain why the Bill has come under tremendous attack in the media. Even otherwise, global trends also show that civil liberty rights activists have had great initial advantage in their campaign against DNA profiling.” After all, the potential for misuse of DNA samples is not restricted to biological material collected under the provisions of the DNA Bill alone, Nandineni offers. “Any and every blood sample collected by a clinical laboratory has the same potential for misuse,” he says.

While Dr J Gowrishankar, director, CDFD, has been vocal about the positives of the Bill, its opponents have been louder. Many of those who oppose the Bill say the question is not one of being loud or feeble, but about being naïve or not.

The likes of Sunil Abraham, executive director of Bangalore-based internet research organisation Centre for Internet and Society (CIS), have no argument against DNA profiling being the gold standard for all forensic investigations. “There is nothing wrong with using DNA evidence for forensic purposes,” says Abraham, “However, the draft Bill is filled with techno-utopianism; it assumes that the people and machines that leverage DNA technologies are infallible.” He goes on, “This is not true. It is easier to tamper with DNA evidence than it is to tamper with a video recording. Therefore, all we are asking for are process checks that prevent compromised persons and machines from using DNA evidence to convict or exonerate the wrong person.” His contention is that if the DNA sample is sent to two different labs and both labs come back with exactly the same result, then the courts can be convinced of the veracity of the result. “Also the Bill says that DNA labs will give courts ‘yes’ or ‘no’ answers to questions related to DNA matching. But ideally, the lab must give the exact match percentage along with all the detailed information that emerges from the match process so that the court can fully appreciate the significance of the DNA evidence,” he suggests.

Abraham and legal scholar Usha Ramanathan—both members of the expert panel who filed notes of dissent and disagreed with various aspects of the Bill—have a problem with the claim that the proposed DNA data bank will cover only criminals and not the general public. Points out Ramanathan: “The Bill does not restrict the data base to criminals alone, not by a long shot. The provision in the proposed Bill reads: ‘(Clause 31(4)) Every DNA Data Bank shall maintain following indices for various categories of data, namely: (a) a crime scene index; (b) a suspects’ index; (c) an offenders’ index; (d) a missing persons’ index; (e) unknown deceased persons’ index; (f) a volunteers’ index; and (g) such other DNA indices as may be specified by regulations.’ That is an elaborate set of indices. There is certainly a lot of the ‘general public’ in it.”

Supporters of the DNA Profiling Bill have maintained that a DNA data bank is not for the public but only for a limited category of individuals. The proposed law also provides for storing profiles with the consent of relatives of missing children and grownups so that relationship identities can be established.

Ramanathan is also worried that apart from purposes of criminal justice, DNA profiling may be extended to parental disputes (maternity or paternity), issues related to pedigree, those related to assisted reproductive technologies (surrogacy, in vitro fertilisation or IVF, intrauterine implantation or IUI, and so on), to transplantation of human organs (donor and recipient) under the Transplantation of Human Organs Act, 1994, and also related to immigration or emigration. She had objected to the requirement of revealing a person’s caste in the application form for offering blood samples. “This Bill is certainly not a convict data base. The ambitions are much much vaster, and little to do with crime control,” she alleges.

Abraham agrees that some safeguards have been built in the proposed law to prevent any misuse of DNA data under pressure from expert panel members such as him. However, he says, cyber security and privacy-related issues are not addressed in a comprehensive manner. “The Bill basically hopes that the Privacy Bill will address all of this when it becomes law. But unfortunately, a bill could take 7-10 years before it becomes law,” he says.

Dr Gowrishankar of CDFD and others have conceded that it was the decision of the expert panel to include an enabling provision for the privacy issues of DNA profiling to comply with the proposed Privacy Bill.

Abraham says that various measures to prevent ‘privacy harms’ to volunteers are missing in the latest draft of the Bill. “Given that biometric technology works on probabilistic matching, the larger the size of the database, the larger the incidence of mistaken identification. Therefore it is important that the database remain as small as necessary,” he asserts.

+++

The estimated cost of the Bill is Rs 20 crore—to create the infrastructure for the DNA Profiling Board and the data bank, which includes buildings, furniture, computer servers and so on. Among other things, the DNA Profiling Board is tasked with the responsibility of laying down and implementing standards for laboratories and proper protocols for ‘Data Bank’ operations.

CDFD scientists and government officials are keen to highlight the ‘under- hyped’ benefits of DNA profiling –similar to the Innocence Project in the US, which was aimed at securing the release of people who were erroneously convicted on the basis of other lines of evidence. Abraham has no patience for such comparisons. “DNA profiling for forensic purposes is very advanced and sophisticated, but technologies do not exist in a vacuum,” he says, “These advanced technologies have to work within traditional institutions with vulnerabilities and flaws. We need to, therefore, have non-technological procedural fixes that ensure that these technologies are not compromised by money and power. The choice is between the right to privacy and the rights and requirements of the criminal justice process.”

Ramanathan agrees with that view. “In the Indian context, the state of investigation is so poor that we have been looking for ways of circumventing our problems, not addressing them. That is how narco-analysis began to be used, till the court struck it down. DNA may be more reliable than most other scientific tools available to us today, but it is not all about the science. We also have to worry about contamination, what happens in the chain of custody, its potential for being planted or otherwise abused, and the errors even in the laboratory. You may remember the avowed mix-up of results in the Aarushi [Talwar murder] case, something the lab said they noticed over two years after they had given it to the investigators. The danger of treating DNA as conclusive and not needing corroboration is exacerbated in this kind of a vulnerable system. Which is why bringing this into a DNA data base law and not putting any checks on criminal procedure is less than wise,” she elaborates. She is least impressed with the ‘idea’ of ‘pedigree’ and of ‘population genetics’ in the Bill. “Institutions like the CDFD have been collecting DNA from suspects and asking for the caste of the person on the form. How does this seem innocent and safeguarded?” she asks.

Meanwhile, columnist and author Salil Tripathi says that it is sheer hubris to think that technology will provide all the answers to crime-fighting. “Tech- nology is enormously useful and powerful, but it is value-neutral; it can be used for good or bad ends… There have to be sufficient safeguards, overseen not only by technologists, law enforcement officers and bureaucrats, but also by lawyers and civil liberties experts, who can point out potential flaws and misuse and prevent those.”

Tripathi, too, is piqued that one of the markers sought is of caste. “Why?” he asks, emphatic that the country’s people should be concerned about allowing the state so much power over their lives. “And it may not be only the state; given that the scope of its future expansion is undefined, what guarantees are there that private actors won’t have access to the data, and if so, what security protocols would apply?”

Dr Gowrishankar and Dr Nandineni are right in saying that without DNA fingerprinting, many international criminals would still be at liberty, and the opponents of the Bill do not disagree with the efficacy of the technique developed by Sir Jeffreys. Instead, they are placing the spotlight on various objectionable aspects in the proposed law. In a country which first needs—according to former RAW chief Vikram Sood—to ensure access to Photofit (a technique to create an accurate image of a person that gels with a witness’ description) for its ground-level police operatives to combat crime, critics of the Bill seem to have won the war of words.

For more details visit https://cis-india.org/internet-governance/news/open-magazine-august-7-2015-ullekh-np-genetic-profiling

Why the DNA Bill is open to misuse: Sunil Abraham

sunil — 2015-09-13T08:37:44Z

The Human DNA Profiling Bill, the law that regulates the collection, storage and use of the human genetic code, has attracted some strong criticism from civil liberties groups including the Bengaluru-based Centre for Internet and Society (CIS) which had participated in the expert committee for DNA profiling constituted by the Department of Biotechnology in 2012.

CIS circulated a detailed dissent note earlier this year on the draft of the Bill. As the government gets ready to table the Bill in Parliament, CIS Executive Director Sunil Abraham tells Kanika Datta why the provisions of the Bill are open to misuse and invasion of privacy. Edited excerpts:

Why does Centre for Internet and Society reject using DNA analysis for non-forensic use as set out in the Human DNA Profiling Bill in its current form? What are the possible risks involved here?

The problem here is that the introduction to the Bill talks of DNA matches "without a doubt". But the way we understand it, biometric technology depends on approximate matching and not discrete matching. Unlike, say, the technology used for matching digital signatures, machines for matching DNA, fingerprints or the iris specify a false positive ratio when they leave the factory - that's what created the controversy in the O J Simpson trial, for example. This means you have to be very conservative in populating the database. For a given false positive ratio - the larger the database the greater the incidence of mistaken identification. That is why we think that for purposes other than forensic use, it would be better to create other databases.

Let me clear: we are not Luddites but neither are we naïve techno-enthusiasts. After all, the Innocence Project in the US has managed to overturn the convictions of many people who were held guilty through DNA evidence. But it is a myth that the more sophisticated the technology the more secure and accurate it is. In fact, the reverse is often true. For instance, the voter machines we use in India are primitive technology but they are much harder to compromise compared to the voting machines used in the US. Given all this, we believe that there should be "process fixes", such as sending DNA collected from a crime scene to two laboratories as a check and balance against the fallibility of human beings and machines.

CIS made the point that the powers of the DNA Board are too wide. In what possible way could these powers be misused since the Board is to be an independent authority?

When this exercise was started, the DNA Board had 26 functions. We proposed that this be cut this down to ten, which was accepted by a sub-committee. But when the final Bill came back it rejected the consensus view and restored the 26 functions, including things like "raising the general awareness". All this detracts from the Board's primary role and efficiency and expands its discretionary powers. It is true that a good regulator needs some amount of discretion but this should be a limited discretion within a tightly defined scope -- this is true for any regulator, not just the DNA Board.

The provision that no civil suit can be entertained on any matter on which the DNA Board is empowered under the Act looks excessive. Is there any precedent that explains why this provision was introduced? What kind of oversight and checks and balances are there in other jurisdictions that could be incorporated in the Indian law?

I can understand the logic here; the government is trying to ensure that the regulator has final say. After all, if you look at telecom, the decisions of the TDSAT (Telecom Dispute Settlement & Appellate Tribunal) can be appealed in the High Court and the Supreme Court. But eliminating judicial appeal as this Bill has state amounts to a violation of classic regulatory design by circumventing the appellate process. Ideally, we need a tripartite separation of law in which the executive frames policies, the DNA board implements them and the courts adjudicate upon them.

You have said the term "DNA Analysis" has not been defined. Could you explain the possible risks of the absence of a definition?

DNA analysis is of many types and some of them allow you to get to know a person quite intimately in terms of their medical history, genetic traits and so on. But forensic analysis looks at a limited set of markers which are essentially privacy-protecting and from which no genetic traits can be determined. You can't, for instance, do a study on the genetic make-up of criminals from this analysis. Now, if this Bill is around law enforcement - which we know is the policy intention - then the DNA analysis should be limited to those markers. That would reduce the chances of abuse.

You have also criticised the low standards of information disclosure and suggest the issue should be vested in an independent third party rather than the DNA Bank Manager. Could you explain how this would help?

In information and technology and telecom there is an executive authorisation mechanism in place for information sharing that requires the home secretary's permission for non-emergency situations and the head of the police station in the case of an emergency. We want a similar authorisation process - say, a judge and an established paper trail so that there are proper checks and balances. When personal information is involved, even the DNA Board is not well placed because its members are scientists whereas disclosure of personal information is a question of the law.

You have said the Bill has not been brought in line with the nine national privacy principles set out by an expert committee in 2012. Shouldn't a privacy law precede the passing of the DNA Bill in any case?

It's not a chicken-and-egg situation, but the point to consider is that the world is moving towards European data protection principles, and something like 100 countries have adopted it. If we in India want to trade in European personal information (via our BPO and outsourcing businesses) we must have a law that is adequate from the data protection perspective. This means, among other things, mandating that anyone whose DNA profile is accessed receives a notice to this effect, for instance. We know that the Department of Personnel and Training has incorporated the principles set out in the Justice Shah report in the privacy Bill two years ago but we haven't heard anything about it since. If and when this Bill is enacted, it will have overriding powers over a host of laws. But where the DNA Bill is concerned, there is no reason for it not to take cognisance of a later law.

What has been the government's reaction to this dissent note?

No reaction!

For more details visit https://cis-india.org/internet-governance/news/business-standard-kanika-datta-august-1-2015-why-the-dna-bill-is-open-to-misuse-sunil-abraham

Regulation, misuse concerns still dog DNA profiling bill

praskrishna — 2015-09-13T08:32:48Z

Experts fear such data could be used for non-forensic purposes and are concerned about the vast powers to be vested in proposed DNA profiling board.

The article by Nikita Mehta was published in Livemint on July 29, 2015. Sunil Abraham gave his inputs.

A bill aimed at creating a DNA database of offenders, slated for introduction in the monsoon session of Parliament, has been criticized by experts who fear that such information could be used for non-forensic purposes and are concerned about the vast powers sought to vested in a proposed DNA profiling board.

Despite changes made by the Department of Biotechnology, the final draft of the Human DNA Profiling Bill 2015 has drawn flak from the Centre for Internet and Society (CIS), a non-profit group that works on policy issues.

The bill seeks Parliament’s approval for plans to create a DNA bank of various offenders in order to prevent repeat offences and to regulate the process by defining infrastructure, training, qualifications, facilities and legalities.

The government says that conducting DNA analysis involves working with sensitive information which, if misused, can cause harm to a person or to society. There is, thus, a need to restrict the use of DNA profiles through an Act of Parliament only for lawful purposes of establishing someone’s identity in a criminal or civil case and for other specified purposes.

The bill seeks to establish standards for laboratories, staff qualifications, training, proficiency testing, collection of body substances, custody trail from collection to reporting and a data bank with policies of use and access to information, its retention and deletion.

The offences for which the database can be maintained range from criminal and civil offences to paternity disputes.

“We need this bill because there are so many unresolved cases. A judge can use this data as material evidence and speedy justice can be served,” said M.K. Bhan, former secretary of the department of biotechnology. “Tremendous amount of effort has been taken to consult all possible parties and the bill has been drafted and redrafted over the years,” Bhan added.

In its note of dissent, CIS raised objections about DNA profiling and DNA samples being used for identifying victims of accidents or disasters, for missing persons and in civil disputes. It also objected to the creation and maintenance of a population statistics databank that is to be used, as prescribed, for the purposes of identification.

“One problem is accuracy. Unlike comparisons between digital signatures which can either have matches or no matches, biometric signatures will have a level of accuracy, so there can be a few false matches. Hence unnecessary widening of the data will reduce the accuracy of this system,” said Sunil Abraham, executive director at CIS.

CIS further noted that a DNA Profiling Board proposed by the bill will have vast powers, including those of authorizing procedures for DNA profiling for civil and criminal investigation, drawing up a list of instances for the application of human DNA profiling and undertaking any other activity which in the opinion of the Board advances the purposes of the Act. The DNA Profiling Board will consist of eminent scientists, administrators and law enforcement officers who will administer and carry out other functions assigned to it under the Act.

“Usually when regulators are created, the mandate is extremely clear. In this bill it is quite vague and there should not be so many things left to the discretionary powers of the board,” said Abraham who was part of the consultation process for the bill. He added that a number of changes have been introduced to the bill, including reduction of powers of the board, tighter definitions and more privacy safeguards.

“Any regulatory system requires external auditing, that should be taken into view. Another issue that was being looked at was that the forensic system should be outside police jurisdiction as they may have vested interests,” Bhan said.

The CIS note pointed out that although the bill refers to security and privacy procedures that labs are to follow, these have been left to be drawn up and implemented by the proposed DNA Board.

“This proposal has been doing the rounds for years and I can vouch for the scientific infallibility of using DNA profiling for carrying out justice. That being said, the bill does not provide verifiable or implementable safeguards for misuse of this data and lack of accountability of public servants can cause serious jeopardy to the privacy of citizens,” said K.P.C. Gandhi, a forensic scientist and founder chairman at Truth Labs, an independent forensic science laboratory.

For more details visit https://cis-india.org/internet-governance/news/livemint-nikita-mehta-july-29-2015-regulation-misuse-concerns-still-dog-dna-profiling-bill

Concerns Regarding DNA Law

bhairav — 2013-10-29T10:09:26Z

Recently, a long government process to draft a law to permit the collection, processing, profiling, use and storage of human DNA is nearing conclusion. There are several concerns with this government effort. Below, we present broad-level issues to be kept in mind while dealing with DNA law.

Background

The Department of Biotechnology released, in 29 April 2012, a working draft of a proposed Human DNA Profiling Bill, 2012 ("DBT Bill") for public comments. The draft reveals an effort to (i) permit the collection of human blood, tissue and other samples for the purpose of creating DNA profiles, (ii) license private laboratories that create and store the profiles, (iii) store the DNA samples and profiles in various large databanks in a number of indices, and (iv) permit the use of the completed DNA profiles in scientific research and law enforcement. The regulation of human DNA profiling is of significant importance to the efficacy of law enforcement and the criminal justice system and correspondingly has a deep impact on the freedoms of ordinary citizens from profiling and monitoring. Below, we highlight five important concerns to bear in mind before drafting and implementing DNA legislation.

Primary Issues

Purpose of DNA Profiling

DNA profiling serves two broad purposes – (i) forensic – to establish unique identity of a person in the criminal justice system; and, (ii) research – to understand human genetics and its contribution to anthropology, biology and other sciences. These two purposes have very different approaches to DNA profiling and the issues and concerns attendant on them vary accordingly. Forensic DNA profiling is undertaken to afford either party in a criminal trial a better possibility of adducing corroborative evidence to prosecute, or to defend, an alleged offence. DNA, like fingerprints, is a biometric estimation of the individuality of a person. By itself, in the same manner that fingerprint evidence is only proof of the presence of a person at a particular place and not proof of the commission of a crime, DNA is merely corroborative evidence and cannot, on its own strength, result in a conviction or acquittal of an offence. Therefore, DNA and fingerprints, and the process by which they are collected and used as evidence, should be broadly similar.

Procedural Integrity

Forensic DNA profiling results from biological source material that is usually collected from crime scenes or forcibly from offenders and convicts. Biological source material found at a crime scene is very rarely non-contaminated and the procedure by which it is collected and its integrity ensured is of primary legislative importance. To avoid the danger of contaminated crime scene evidence being introduced in the criminal justice system to pervert the course of justice, it is crucial to ensure that DNA is collected only from intact human cells and not from compromised genetic material. Therefore, if the biological source material found at a crime scene does not contain at least one intact human cell, the whole of the biological source material should be destroyed to prevent the possibility of compromised genetic material being collected to yield inconclusive results. Adherence to this basic principle will obviate the possibility of partial matches of DNA profiles and the resulting controversy and confusion that ensues.

Conditions of Collection

In India, the taking of fingerprints is chiefly governed by the Identification of Prisoners Act, 1920 ("Prisoners Act") and section 73 of the Indian Evidence Act, 1872 ("Evidence Act"). The Prisoners Act permits the forcible taking of fingerprints from convicts and suspects in certain conditions. The Evidence Act, in addition, permits courts to require the taking of fingerprints for the forensic purpose of establishing unique identity in a criminal trial. No
provisions exist for consensual taking of fingerprints, presumably because of the danger of self-incrimination and general privacy concerns. Since, as discussed earlier, fingerprints and DNA are biometric measurements that should be treated equally to the extent possible, the conditions for the collection of DNA should be similar to those for the taking of fingerprints.Accordingly, there should be no legal provisions that enable other kinds of collection, including from volunteers and innocent people.

Retention of DNA

As a general rule applicable in India, the retention of biometric measurements must be supported by a clear purpose that is legitimate, judicially sanctioned and transparent. The Prisoners Act, which permits the forcible taking of fingerprints from convicts, also mandates the destruction of these fingerprints when the person is acquitted or discharged. The indefinite collection of biometric measurements of people is dangerous, susceptible to abuse and invasive of civil rights. Therefore, once lawfully collected from crime scenes and offenders, their DNA profiles must be retained in strictly controlled databases with highly restricted access for the forensic purpose of law enforcement only. DNA should not be held in databases that allow non-forensic use. Further, the indices within these databases should be watertight and exclusive of each other.

DNA Laboratories

The process by which DNA profiles are created from biological source material is of critical importance. Because of the evidentiary value of DNA profiles, the laboratories in which these profiles are created must be properly licensed, professionally managed and manned by competent and impartial personnel. Therefore, the process by which DNA laboratories are licensed and permitted to operate is significant.

For more details visit https://cis-india.org/internet-governance/blog/concerns-regarding-dna-law

Re: The Human DNA Profiling Bill, 2012

bhairav — 2013-10-29T10:00:47Z

This short note speaks to legal issues arising from the proposed Human DNA Profiling Bill, 2012 ("DBT Bill") that was circulated drafted under the aegis of the Department of Biotechnology of the Ministry of Science and Technology, Government of India, which seeks to collect human DNA samples, profile them and store them. These comments are made clause-by-clause against the DBT Bill.

Note: Clause-by-clause comments on the Working Draft version of April 29, 2012 from the Centre for Internet and Society

This short note speaks to legal issues arising from the proposed Human DNA Profiling Bill, 2012 ("DBT Bill") that was circulated within the Experts Committee constituted under the aegis of the Department of Biotechnology of the Ministry of Science and Technology, Government of India.
This note must be read against the relevant provisions of the DBT Bill and, where indicated, together with the proposed Forensic DNA Profiling (Regulation) Bill, 2013 that was drafted by the Centre for Internet & Society, Bangalore ("CIS Bill"). These comments must also be read alongside the two-page submission titled “A Brief Note on the Forensic DNA Profiling (Regulation) Bill, 2013” ("CIS Note"). Whereas the aforesaid CIS Note raised issues that informed the drafting of the CIS Bill, this present note seeks to provide legal comments on the DBT Bill.
Preamble
The DBT Bill, in its current working form, lacks a preamble. No doubt, a preamble will be added later once the text of the DBT Bill is finalised. Instead, the DBT Bill contains an introduction. It must be borne in mind that the purpose of the legislation should be spelt out in the preamble since preambular clauses have interpretative value. [See, A. Thangal Kunju Musaliar AIR 1956 SC 246; Burrakur Coal Co. Ltd. AIR 1961 SC 954; and Arnit Das (2000) 5 SCC 488]. Hence, a preamble that states the intent of Parliament to create permissible conditions for DNA source material collection, profiling, retention and forensic use in criminal trials is necessary.
Objects Clause
An ‘objects clause,’ detailing the intention of the legislature and containing principles to inform the application of a statute, in the main body of the statute is an enforceable mechanism to give directions to a statute and can be a formidable primary aid in statutory interpretation. [See, for example, section 83 of the Patents Act, 1970 that directly informed the Order of the Controller of Patents, Mumbai, in the matter of NATCO Pharma and Bayer Corporation in Compulsory Licence Application No. 1 of 2011.] Therefore, the DBT Bill should incorporate an objects clause that makes clear that (i) the principles of notice, confidentiality, collection limitation, personal autonomy, purpose limitation and data minimisation must be adhered to at all times; (ii) DNA profiles merely estimate the identity of persons, they do not conclusively establish unique identity; (iii) all individuals have a right to privacy that must be continuously weighed against efforts to collect and retain DNA; (iv) centralised databases are inherently dangerous because of the volume of information that is at risk; (v) forensic DNA profiling is intended to have probative value; therefore, if there is any doubt regarding a DNA profile, it should not be received in evidence by a court; (vi) once adduced, the evidence created by a DNA profile is only corroborative and must be treated on par with other biometric evidence such as fingerprint measurements.
Definitions
The definition of “analytical procedure” in clause 2(1)(a) of the DBT Bill is practically redundant and should be removed. It is used only twice – in clauses 24 and 66(2)(p) which give the DNA Profiling Board the power to frame procedural regulations. In the absence of specifying the content of any analytical procedure, the definition serves no purpose.
The definition of “audit” in clause 2(1)(b) is relevant for measuring the training programmes and laboratory conditions specified in clauses 12(f) and 27. However, the term “audit” is subsequently used in an entirely different manner in Chapter IX which relates to financial information and transparency. This is a conflicting definition. The term “audit” has a well-established use for financial information that does not require a definition. Hence, this definition should be removed.
The definition of “calibration” in clause 2(1)(d) is redundant and should be removed since the term is not meaningfully used in the DBT Bill.
The definition of “DNA Data Bank” in clause 2(1)(h) is unnecessary. The DBT Bill seeks to establish a National DNA Data Bank, State DNA Data Banks and Regional DNA Data Banks vide clause 32. These national, state and regional databases must be defined individually with reference to their establishment clauses. Defining a “DNA Data Bank”, exclusive of the national, state and regional databases, creates the assumption that any private individual can start and maintain a database. This is a drafting error.
The definition of “DNA Data Bank Manager” in clause 2(1)(i) is misleading since, in the text of the DBT Bill, it is only used in relation to the proposed National DNA Data Bank and never in relation to the State and Regional Data Banks. If it is the intention of DBT Bill that only the national database should have a manager, the definition should be renamed to ‘National DNA Data Bank Manager’ and the clause should specifically identify the National DNA Data Bank. This is a drafting error.
The definition of “DNA laboratory” in clause 2(1)(j) should refer to the specific clauses that empower the Central Government and State Governments to license and recognise DNA laboratories. This is a drafting error.
The definition of “DNA profile” in clause 2(1)(l) is too vague. Merely the results of an analysis of a DNA sample may not be sufficient to create an actual DNA profile. Further, the results of the analysis may yield DNA information that, because of incompleteness or lack of information, is inconclusive. These incomplete bits of information should not be recognised as DNA profiles. This definition should be amended to clearly specify the contents of a complete and valid DNA profile that contains, at least, numerical representations of 17 or more loci of short tandem repeats that are sufficient to estimate biometric individuality of a person.
The definition of “forensic material” in clause 2(1)(o) needs to be amended to remove the references to intimate and non-intimate body samples. If the references are retained, then evidence collected from a crime scene, where an intimate or non-intimate collection procedure was obviously not followed, will not fall within the scope of “forensic material”.
The terms “intimate body sample” and “non-intimate body sample” that are defined in clauses 2(1)(q) and 2(1)(v) respectively are not used anywhere outside the definitions clause except for an inconsequential reference to non-intimate body samples only in the rule-making provision of clause 66(2)(zg). “Intimate body sample” is not used anywhere outside the definitions clause. Both these definitions are redundant and should be removed.
The terms “intimate forensic procedure” and “non-intimate forensic procedure”, that are defined in clauses 2(1)(r) and 2(1)(w) respectively, are not used anywhere except for an inconsequential reference of non-intimate forensic procedure in the rule-making provision of clause 66(2)(zg). “Intimate forensic procedure” is not used anywhere outside the definitions clause. Both these definitions are redundant and should be removed.
The term “known samples” that is defined in clause 2(1)(s) is not used anywhere outside the definitions clause and should be removed for redundancy.
The definition of “offender” in clause 2(1)(y) if vague because it does not specify the offences for which an “offender” need be convicted. It is also linked to an unclear definition of the term “undertrial”, which does not specify the nature of pending criminal proceedings and, therefore, could be used to describe simple offences such as, for example, failure to pay an electricity bill, which also attracts criminal penalties.
The term “proficiency testing” that is defined in clause 2(1)(zb) is not used anywhere in the text of the DBT Bill and should be removed.
The definitions of “quality assurance”, “quality manual” and “quality system” serve no enforceable purpose since they are used only in relation to the DNA Profiling Board’s rule-making powers under clauses 18 and 66. Their inclusion in the definitions clause is redundant. Accordingly, these definitions should be removed.
The term “suspect” defined in clause 2(1)(zi) is vague and imprecise. The standard by which suspicion is to be measured, and by whom suspicion may be entertained – whether police or others, has not been specified. The term “suspect” is not defined in either the Code of Criminal Procedure, 1973 ("CrPC") or the Indian Penal Code, 1860 ("IPC").
The DNA Profiling Board
Clause 3 of the DBT Bill, which provides for the establishment of the DNA Profiling Board, contains a sub-clause (2) which vests the Board with corporate identity. This vesting of legal personality in the DNA Profiling Board – when other boards and authorities, even ministries and independent departments, and even the armed forces do not enjoy this function – is ill-advised and made without sufficient thought. Bodies corporate may be corporations sole – such the President of India, or corporations aggregate – such as companies. The intent of corporate identity is to create a fictional legal personality where none previously existed in order for the fictional legal personality to exist apart from its members, enjoy perpetual succession and to sue in its own legal name. Article 300 of the Constitution of India vests the Central Government with legal personality in the legal name of the Union of India and the State Governments with legal personality in the legal names of their respective states. Apart from this constitutional dispensation, some regulatory authorities, such as the Telecom Regulatory Authority of India ("TRAI") and the Securities and Exchange Board of India ("SEBI") have been individually vested with legal personalities as bodies corporate to enable their autonomous governance and independent functioning to secure their ability to free, fairly and impartially regulate the market free from governmental or private collusion. Similarly, some overarching national commissions, such as the Election Commission of India and the National Human Rights Commission ("NHRC") have been vested with the power to sue and be sued in their own names. In comparison, the DNA Profiling Board is neither an independent market regulator nor an overarching national commission with judicial powers. There is no legal reason for it to be vested with a legal personality on par with the Central Government or a company. Therefore, clause 3(2) should be removed.
The size and composition of the Board that is staffed under clause 4 is extremely large. Creating unwieldy and top-heavy bureaucratic authorities and investing them with regulatory powers, including the powers of licensing, is avoidable. The DBT Bill proposes to create a Board of 16 members, most of them from a scientific background and including a few policemen and one legal administrator. In its present form, the Board is larger than many High Courts but does not have a single legal member able to conduct licensing. Drawing from the experiences of other administrative and regulatory bodies in India, the size of the Board should be drastically reduced to no more than five members, at least half of whom should be lawyers or ex-judges. The change in the legal composition of the Board is necessary because the DBT Bill contemplates that it will perform the legal function of licensing that must obey basic tenets of administrative law. The current membership may be viable only if the Board is divested of its administrative and regulatory powers and left with only scientific advice functions. Moreover, stacking the Board with scientists and policemen appears to ignore the perils that DNA collection and retention pose to the privacy of ordinary citizens and their criminal law rights. The Board should have adequate representation from the human rights community – both institutional (e.g NHRC and the State Human Rights Commissions) and non-institutional (well-regarded and experienced human rights activists). The Board should also have privacy advocates.
Clauses 5(2) and 5(3) establish an unequal hierarchy within the Board by privileging some members with longer terms than others. There is no good reason for why the Vice-Chancellor of a National Law University, the Director General of Police of a State, the Director of a Central Forensic Science Laboratory and the Director of a State Forensic Science Laboratory should serve membership terms on the Board that are longer than those of molecular biologists, population geneticists and other scientists. Such artificial hierarchies should be removed at the outset. The Board should have one pre-eminent chairperson and other equal members with equal terms.
The Chairperson of the Board, who is first mentioned in clause 5(1), has not been duly and properly appointed. Clause 4 should be modified to mention the appointment of the Chairperson and other Members.
Clause 7 deals with the issue of conflict of interest in narrow cases. The clause requires members to react on a case-by-case basis to the business of the Board by recusing themselves from deliberations and voting where necessary. Instead, it may be more appropriate to require members to make a full and public disclosures of their real and potential conflicts of interest, and then granting the Chairperson the power to prevent such members from voting on interested matters. Failure to follow these anti-collusion and anti-corruption safeguards should attract criminal penalties.
Clause 10 anticipates the appointment of a Chief Executive Officer of the Board who shall be a serving Joint Secretary to the Central Government. Clause 10(3) further requires this officer to be scientist. This may not be possible because the administrative hierarchy of the Central Government may not contain a genetic scientist.
The functions of the Board specified in clause 12 are overbroad. Advising ministries, facilitating governments, recommending the size of funds and so on – these are administrative and governance functions best left to the executive. Once the Board is modified to have sufficient legal and human rights representation, then the functions of the Board can non-controversially include licensing, developing standards and norms, safeguarding privacy and other rights, ensuring public transparency, promoting information and debate and a few other limited functions necessary for a regulatory authority.
DNA Laboratories
The provisions of Chapters V and VI may be simplified and merged.
DNA Data Banks
The creation of multiple indices in clause 32(4) cannot be justified and must be removed. The collection of biological source material is an invasion of privacy that must be conducted only in strict conditions when the potential harm to individuals is outweighed by the public good. This balance may only be struck when dealing with the collection and profiling of samples from certain categories of offenders. The implications of collecting and profiling DNA samples from corpses, suspects, missing persons and others are vast and have either not been properly understood or deliberately ignored. At this moment, the forcible collection of biological source material should be restricted to the categories of offenders mentioned in the Identification of Prisoners Act, 1920 ("Prisoners Act") with a suitable addition for persons arrested in connection with certain specified terrorism-related offences. Therefore, databases should contain only an offenders’ index and a crime scene index.
Clause 32(6), which requires the names of individuals to be connected to their profiles, and hence accessible to persons connected with the database, should be removed. DNA profiles, once developed, should be anonymised and retained separate from the names of their owners.
Clause 36, which allows international disclosures of DNA profiles of Indians, should be removed immediately. Whereas an Indian may have legal remedies against the National DNA Data Bank, he/she certainly will not be able to enforce any rights against a foreign government or entity. This provision will be misused to rendition DNA profiles abroad for activities not permitted in India. Similarly, as in data protection regimes around the world, DNA profiles should remain within jurisdictions with high privacy and other legal standards.
Use
The only legitimate purpose for which DNA profiles may be used is for establishing the identity of individuals in criminal trials and confirming their presence or absence from a certain location. Accordingly, clauses 39 and 40 should be re-drafted to specify this sole forensic purpose and also specify the manner in which DNA profiles may be received in evidence. For more information on this point, see the relevant provisions of the CIS Note and the CIS Bill.
The disclosure of DNA profiles should only take place to a law enforcement agency conducting a valid investigation into certain offences and to courts currently trying the individuals to whom the DNA profiles pertains. All other disclosures of DNA profiles should be made illegal. Non-consensual disclosure of DNA profiles for the study of population genetics is specifically illegal. The DBT Bill does not prescribe stringent criminal penalties and other mechanisms to affix individual liability on individual scientists and research institutions for improper use of DNA profiles; it is therefore open to the criticism that it seeks to sacrifice individual rights of persons, including the fundamental right to privacy, without parallel remedies and penalties. Clause 40 should be removed in entirety.
Clause 43 should be removed in entirety. This note does not contemplate the retention of DNA profiles of suspects and victims, except as derived from a crime scene.
Clause 45 sets out a post-conviction right related to criminal procedure and evidence. This would fundamentally alter the nature of India’s criminal justice system, which currently does not contain specific provisions for post-conviction testing rights. However, courts may re-try cases in certain narrow cases when fresh evidence is brought forth that has a nexus to the evidence upon which the person was convicted and if it can be proved that the fresh evidence was not earlier adduced due to bias. Any other fresh evidence that may be uncovered cannot prompt a new trial. Clause 45 is implicated by Article 20(2) of the Constitution of India and by section 300 of the CrPC. The principle of autrefois acquit that informs section 300 of the CrPC specifically deals with exceptions to the rule against double jeopardy that permit re-trials. [See, for instance, Sangeeta Mahendrabhai Patel (2012) 7 SCC 721].

For more details visit https://cis-india.org/internet-governance/blog/re-the-human-dna-profiling-bill-2012