By Ashima Sharma and Nidhi Pratap Singh
The DNA Technology (Use and Application) Regulation Bill, 2019 ( “Bill”) has been formulated to create a national DNA database for use in criminal investigation and civil matters. DNA technology can be used to ascertain the identity of a person and can be of use in criminal investigation to establish the identity of offenders, suspects and victims. It can also be used in civil disputes in matters relating to parentage, immigration, organ donation amongst others.
The Bill raises pertinent questions regarding the efficiency of DNA profiling in the criminal justice system of India and has been criticized for its lack of safeguards to protect data, transparency and use of Data and violation of the citizen’s right to privacy, to name a few. This article explains, firstly the gaps in the proposed Bill vis-a-vis international standards use of DNA technology; secondly, it discusses the Bill’s role in compounding marginalization for vulnerable communities and lastly, it describes the possible impact of the Bill on sex workers in relation to the Immoral Trafficking (Prevention) Act, 1956.
Gaps in DNA Technology (Use and Application) Regulation Bill, 2019
The Bill grants law enforcement agencies to collect DNA data and create DNA profiles for the purpose of efficient investigation of crimes. However, the effective use of DNA technology is subject to trained and reliable police officials, efficient examination of the crime scene and fitting use of expert evidence in court. It is argued that given the lack of police training and rampant mismanagement of evidence in the present criminal justice in India, it is not equipped to effectively use DNA technology and is prone to cause abuse and injustice inter alia through planting and manipulating evidence, mislabeling and contamination.
Clause 25 allows for the creation of DNA Data Bank at the national and the state level. Each such bank has to keep index relating to the crime scene, offenders, suspects including under-trials and missing and deceased persons. It has been suggested that there should be separate databases for criminal matters and missing persons in order to ensure that any person providing DNA to locate a missing person is not treated as a suspect. Clause 6 mandates that laboratories carry out DNA testing, they must obtain accreditation from the DNA Regulatory Board. Under Clause 14, the regulatory board has been empowered with many duties such as supervision of the laboratories. However, the bill does not provide for any checks on the Regulatory board. Instead, it has given it wide discretionary power to amend the safeguards provided in the Bill and to avoid accountability in court. Further, international best practices suggest that there must be an independent regulator of data to supervise and maintain checks on laboratory quality and examination of the crime scene and accordingly submit reports to the government. For strengthening the crime scene examination, the collection of evidence must be done by agency or experts which are independent of the police in order to allay the fears of collusion of investigating agencies and experts collecting DNA data.
Our criminal justice system lacks both the infrastructure and the investment needed to maintain large databases. This suggests that collection of DNA samples of convicts, suspects and those arraigned for minor crimes can lead to inefficiency and inaccuracy in results. Therefore, collecting and storing DNA data only from crime scenes would be cost-effective and would contain data of only those persons who carry the highest risk of repeating crimes. Creation of large DNA samples regularly will lead to higher costs of management and will increase the chances of errors. Further, preserving evidence from contamination or mix-up and ensuring safe custody of the evidence, especially in transit from the crime scene to the laboratory and then to the court, is imperative to obtain accurate information. The quality of evidence determines whether DNA data would be relevant or not. Empirical research establishes that DNA profiles collected from crime scenes are much more helpful than those collected from individuals. Thus, investment in strengthening the proper collection of evidence from the crime scene, training of officials in protecting that evidence from being tampered or contaminated would be more beneficial for DNA technology.
Apart from efficiency, there are stronger arguments favouring the deletion of DNA samples of accused persons who are later convicted. In some countries, DNA data is collected not only of convicts but people who have been arrested or alleged to have committed minor crimes. This facilitates marking of bodies of the risky population or those considered to have a natural tendency to commit crimes. In the United States, where DNA profiling is allowed, familial searching has been responsible for aggravating racial stereotypes and exposing racial and ethnic minorities to discrimination at the hands of investigating authorities. The same is likely to happen in India, where the apprehension of criminals in most of the cases is targeted to people from poor socio-economic backgrounds.
The criminal justice system in India is skewed against the marginalized sections of the society who cannot afford legal services and often face the oppression of the state. A clear manifestation of the criminal justice system’s bias against the minority groups is evident from the disproportionate number of convicts and under trials belonging to lower socio-economic and lower caste groups in Indian prisons. Dalits, Muslims and the tribal population account for more than half of all prisoners in India. If the minorities are regularly persecuted by the law then the Bill is likely to compound the discrimination and oppression that the vulnerable sections of the society face at the hands of the state. The Bill does not have any provision to check this institutional bias. In light of the wide discretionary power granted to the police under the Code of Criminal Procedure, 1973 to make arrests on grounds of reasonable belief along with the power differential between state authorities and marginalized communities, this Bill is likely to make the minorities more prone to criminal prosecution. A possible manifestation of this bill’s detrimental impact on marginalized communities can be seen in its possible interaction with Immoral Trafficking (Prevention) Act, 1956 (“ITPA”).
Immoral Trafficking (Prevention) Act, 1956 and DNA Profiling
In the Indian law, sex work in India is conflated with trafficking and no agency has been given to those who voluntarily carry out sex work as a means of livelihood. Sections 7 and 8 of ITPA criminalize ‘carrying on prostitution by any person’ and ‘soliciting in a public place for the purpose of prostitution’. On a day to day basis, women and transpersons who practice sex work suffer sexual abuse and extortion at the hands of police personnel. The stigma attached to sex work and the daily abuse by police personnel pushes HIV prevention programmes underground and further deprive sex workers of their right to health.
The application of the Bill to ITPA can further this stigmatisation of sex workers and deprive them of their immediate need to access to medical care including HIV prevention. Under the Bill, a repository containing DNA profiles of criminals is to be maintained. Since sex workers are criminals under the ITPA, they are prone to being framed as repeat offenders. The collection of coding DNA discloses personal characteristics including infections and diseases such as HIV. Therefore, in the case of sex workers, the coding strand of DNA can provide a prime facie evidence for prosecution under Section 269 and 270 of the IPC, which punish a person for committing any negligent act or malignant act likely to spread infection or disease dangerous to life. This would amount to a violation of the right against self-incrimination under Article 20(3) of the Constitution. There have been few judgments applying these IPC provisions to cases, involving HIV positive persons, and even those do not interpret the said provisions in light of the role played by consent, in absolving people living with HIV from criminal liability of exposing another person to the risk of transmission. It is also unclear whether taking precautionary measures, such as using condoms as a safe sex practice in the context of HIV, would be considered a mitigating factor under the said provisions. Therefore, institutional biases of the police and the judiciary can compound discrimination and prejudice against vulnerable communities. Hence, there is an urgent need for the Bill to consider its impact and incorporate adequate safeguards to protect people from oppressive actions of state agencies.
The disadvantages of enacting a Bill providing access to the most personal information about people has to weighed against the absence of a data protection law in India. The Bill contains several gaps such as those in terms of safeguards for protection of Data. In order to be constitutionally valid, the Bill has to incorporate transparent procedures for removing DNA profiles, exclude the collection of coding elements of DNA and modify itself to protect citizens’ right to privacy.
[The co-authors are third-year students at National Law University, Delhi.]