By Anamika Kundu and Abhinav Gupta
Introduction
The DNA Technology (Use and Application) Regulation Bill, 2019 (‘The Bill’) was tabled in the Lok Sabha (‘LS’) on July 8, 2019.[1] The Bill was first tabled in the LS in August, 2018, but had lapsed.[2] It was then passed by the LS in January, 2019, failed to get assent from the Rajya Sabha and was later lapsed due to dissolution of the 16th LS.[3] The Bill aims to regulate the use of DNA technology for establishing identity of a person in order to support the justice delivery system of the country.[4]
The Bill incorporates provisions regarding setting up of National and Regional Data Banks, maintenance of various indices, DNA Regulatory Board, methods of collection, removal and protection of information.[5] The indices are crime scenes, under trials, offenders, unknown deceased persons’ and missing persons’.[6] The Bill aims to assist law enforcement authorities in criminal as well as civil matters.[7] It provides for written consent of an individual for collecting DNA in all criminal law cases other than for offences which carry a punishment of less than seven years.[8] However, it is silent on the matter relating to consent in civil cases.[9]
This blog-post will discuss the various short-comings of the Bill such as concerns regarding right to privacy and problems related to protection and dissemination of information in the collection, analysis, storage and removal of data. Further, it will analyse the limitations of DNA technology itself and various incidences of false conviction in other jurisdictions which have occurred using this forensic technology.
The faults in collection of DNA
The Bill provides an array of methods for collecting DNA samples for testing. DNA can be collected from blood, semen, fluid, hair, prints or any other object found.[10] However, contamination of evidence due to natural causes, can occur easily.
An investigation by Wired[11] throws light on how collecting DNA can turn up drastically wrong. Lukis Anderson was charged with the murder of Raveesh Kumar after his DNA was found in Raveesh’s fingernails. Later investigation showed that Anderson was drunk earlier that day and was attended by paramedics. The same paramedics also attended Raveesh’s body and transferred Anderson’s DNA. Further, the story quotes forensic findings on how easily our DNA can spread. There is no necessity for direct contact for the transfer of DNA. On an average, a person sheds enough cells to cover an area of a football field in two minutes. In 30 seconds, our DNA can be found a yard away from us. One out of every five people has a third person’s DNA on his fingernails. Furthermore, a test[12] was conducted on public items such as door handles, escalator rails and public toilets, and it was found that 90% of the items had human DNA, sometimes from more than six people. Thus, DNA tests can easily establish misleading results due to natural contamination of evidence.
Analyzing Data
Humans share 99.9% of their DNA with every other person on the planet and it is the 0.01% that makes us unique individuals.[13] DNA profiling is done on this 0.01%. Further, this process has been widely accepted as a trusted and an accurate tool[14] but its limitations are hardly discussed. The Law Commission Report on DNA profiling describes the process as an accurate and a well established technique.[15] The Bill describes it as a sound scientific process based on its effectiveness in establishing parentage, a rather very simple process.[16] It neither recognises the limitations nor provides safeguards against erroneous results. The only method of re-examination is if the trial court feels that the bodily substance taken from the crime scene was contaminated.[17]
DNA profiling has been trusted by courts and the legislature[18] due to the objectivity it provides in finding the perpetrator. Objectivity regarding the mechanical and scientific process of DNA profiling which does not require subjective judgements by humans.[19] But, it has come to light that there are subjective factors even in this process i.e. the analyst and the complexity of the profiling mixture.
A story run by The Atlantic[20] shows how this process is not as objective as this bill claims it to be. Josiah Sutton was arrested for rape after DNA profiling done by the labs showed positive results of his involvement in the crime and sentenced to 25 years in prison. One Mr. Thompson took up this case on insistence from Sutton’s mother. After four years, Sutton’s innocence was established and he was released from jail.
The finding of this case are eye-opening. The DNA testing procedure used was Polymerase Chain Reaction testing, the same procedure that is used in India.[21] It is an amplification technique where the quantity of minuscule amount of sample is increased to perform testing. The procedure is highly sensitive and even a slight contamination at the crime scene can change the results.
The present case[22] was complex as the vaginal swab taken from the victim had three contributors. Two samples were taken from the victim’s blood and one from the saliva to create a DNA profile. The same three samples varied substantially while they should have been identical. This questioned the credibility of technology as it could not establish consistent profile of a single person a rather easier than establishing identity from a complex mixture.
The variations present in the 0.01% of the DNA are called alleles and the odds of unrelated people matching it is one in a billion.[23] However, this math becomes more complicated in the case of mixtures. The number of alleles multiplies with increase in the contributors to a mixture.[24] Here the job of the analyst becomes complicated as he/she has to associate the particular alleles to the contributors. DNA testing expert Peter Gill has noted, “If you show 10 colleagues a mixture, you will probably end up with 10 different answers.”
This highlights fundamental concerns regarding misinterpretation of data in DNA profiling which can comfortably occur in case of mixtures. Cases occur, such as stated above, where innocent people have been convicted for crimes they did not commit due to limitations in DNA profiling and failure of the departments to acknowledge them.
The Bill further fails to explain how the evidence from these tests is to be handled by courts, how much importance should be given to these tests and to what lengths must the court consider these tests. Judges in India generally believe in the scientific accuracy and the results of these tests.[25] Examples from other countries explicitly show that too much dependence on forensic DNA results can produce wrongful conviction and miscarriage of justice.[26] The assumption that technology is always right needs to be examined and rethought.
Removal of collected data
The Bill provides for removal of data in the crime scene index and missing person index on the basis of a written request by the individual.[27] Data of a person under suspect index and under trial index would be erased on the basis of a court order or police report.[28] This provision does not provide for automatic deletion of data after a couple of years from the data bank which makes it susceptible to data theft. Further, The Bill only provides for removal of information from the DNA Banks[29] and not the DNA laboratories itself which are the primary source of this data.
Moreover, it raises serious concerns regarding the privacy of individuals, possible motivation of the government to discriminate in policy making on the basis of the information and the possibility of India becoming a surveillance state. Storage of data of a particular individual is not just the data of that particular person. It is also inherited information and provides data about the entire family.[30]
Thus, removal of the stored information is vital and should not be an individual process where each person has to get a court order or make written requests. The leakage of information regarding people who are not associated with the indices is a major concern, making it necessary for systematic deletion from the data banks regularly.
Conclusion
The Bill raises concerns and violates the right to privacy of an individual. Although DNA profiling will help in a long way to solve various matters, The Bill fails to acknowledge DNA profiling as a very intricate and complex process with certain shortcomings and limitations. The judiciary should weigh in the importance given to the evidence produced before the court through DNA profiling. Further, the stored data of an individual should be deleted mandatorily in a couple of years as it not only violates the right to privacy of the individual but also endangers dissemination of DNA information of his/her relatives.
Anamika Kundu is a 4th Year B.A. LLB. (Hons.) student at The WB National University of Juridical Sciences (NUJS), Kolkata.
Abhinav Gupta is a 1st Year B.A. LLB. (Hons.) student at The WB National University of Juridical Sciences (NUJS), Kolkata.
[1] PRS Legislative Research, The DNA Technology (Use and Application) Regulation Bill, 2019, available at https://www.prsindia.org/billtrack/dna-technology-use-and-application-regulation-bill-2019 (Last visited on October 13, 2019).
[2] Supra note 1.
[3] News 18, DNA Technology Regulation Bill introduced in Lok Sabha; Envisages data bank for criminals, July 8, 2019, available at https://www.news18.com/news/tech/dna-technology-regulation-bill-introduced-in-lok-sabha-envisages-data-bank-for-criminals-2222071.html (Last visited on October 14, 2019).
[4] Id.
[5] PRS Legislative Research, The DNA Technology (Use and Application) Regulation Bill, 2019, available at https://www.prsindia.org/billtrack/dna-technology-use-and-application-regulation-bill-2018 (Last visited on October 13, 2019).
[6] The DNA Technology (Use and Application) Regulation Bill, 2019, 142-C of 2018, Cl. 26.
[7] Supra note 5.
[8] Supra note 1.
[9] Id.
[10] The DNA Technology (Use and Application) Regulation Bill, 2019, 142-C of 2018, Cl. 23.
[11] Wired, Framed for murder by his own DNA, April 19, 2018, available at https://www.wired.com/story/dna-transfer-framed-murder/ (Last visited on October 13, 2019).
[12] M. Van Der Berge, G. Ozcanhan, S. Zijlstra, A. Lindenbergh & T. Sigen, Prevalence of human cell material: DNA and RNA profiling of public and private objects and after activity scenarios, 81 Forensic Science International-Genetics 81-89 (2016).
[13] Supra note 10.
[14] S. Leena Sakari, Sudha Jimson, K.M.K. Masthan & Jenita Jacobina, Role of DNA in Forensic Odontology, 1 Journal of Pharmacy and BioAllied Sciences 138-141 (2015).
[15] Law Commission of India, Human DNA Profiling – A draft Bill for the Use and Regulation of DNA-Based Technology, Report No.271, 40, (July, 2017), available at http://lawcommissionofindia.nic.in/reports/Report271.pdf (Last visited on October 14, 2019).
[16] The DNA Technology (Use and Application) Regulation Bill, 2019, 142-C of 2018, Statement of Objects and Reason.
[17] The DNA Technology (Use and Application) Regulation Bill, 2019, 142-C of 2018, Cl. 24.
[18] Press Release, Ministry of Science and Technology, January 8, 2019, available at https://pib.gov.in/Pressreleaseshare.aspx?PRID=1559099 (Last visited on October 14, 2019).
[19] Subhash Chandra Singh, DNA Profiling and the Forensic use of DNA Evidence in Criminal Proceedings, 53 Journal of the Indian Law and Society 195 (2011).
[20] The Atlantic, The False Promise of DNA Testing, June, 2016, available at https://www.theatlantic.com/magazine/archive/2016/06/a-reasonable-doubt/480747/ (Last visited on October 14, 2019).
[21] Dr. Himanshu Pandey & Anhita Tiwari, Evidence value of DNA: A Judicial Approach, 12 Bharati Law Review (2017).
[22] Supra note 23.
[23] Id.
[24] Id.
[25] Legally India, Admissibility of DNA Technology in the Indian Legal India, March 15, 2011, available at https://www.legallyindia.com/views/entry/admissibility-of-dna-technology-in-the-indian-legal-system-html (Last visited on October 13, 2019).
[26] Gizmodo, When bad DNA tests lead to False Convictions, September 25, 2017, available at https://gizmodo.com/when-bad-dna-tests-lead-to-false-convictions-179791565 (Last visited on October 14, 2019); Wired, Your Relative’s DNA could turn you into a Suspect, October 13, 2015, available at https://www.wired.com/2015/10/familial-dna-evidence-turns-innocent-people-into-crime-suspects/ (Last visited on October 14, 2019).
[27] Supra note 5.
[28] Id.
[29] The DNA Technology (Use and Application) Regulation Bill, 2019, 142-C of 2018, Cl. 31.
[30] The Hindu Business Line, What the DNA Profiling Bill means for your data privacy, August 02, 2019, available at https://www.thehindubusinessline.com/blink/know/what-the-dna-profiling-bill-means-for-your-data-privacy/article28793951.ece (Last visited on October 13, 2019).
The Journal of Indian Law and Society 