DNA Technology Bill passed in Lok Sabha lacks clarity on consent, privacy and proper cost-benefit analysis

It was in July 2018 when the Union Cabinet, chaired by Prime Minister Narendra Modi, approved the DNA Technology (Use and Application) Regulation Bill, 2018. But it was on Tuesday that the landmark decision was successfully passed in the Lok Sabha — a big step towards the regulation and use of Deoxyribonucleic Acid (DNA) technology in identifying missing persons, victims, offenders, people under trial and unknown or deceased people in the country. The Bill will also expand the use of DNA-based forensic technologies to support and strengthen the system of delivering justice in India. Indeed, the passing of this Bill is a huge success for the country as it will allow the so-called “digital era” or technology-enabled era to flourish further. [caption id=“attachment_5863871” align=“alignleft” width=“380”] Representational image. Agencies[/caption] Using technology to pinpoint the identity of people in matters of crime, parentage disputes, emigration or immigration and organ transplant will add considerable speed to the case at hand. In India, regulation is missing at all levels, across all sectors. By providing for a mandatory accreditation and regulation of DNA laboratories, the Bill seeks to ensure that the expanded use of this technology in the country grows alongside assurances of reliable DNA test results. Furthermore, the data from these tests — to be stored in DNA data banks — remains protected from misuse or abuse as far as the privacy rights of Indian citizens are concerned. The consent and privacy clauses in the bill are yet to be elaborated upon. Important things that the Bill’s hasn’t clearly stated includes conditions under which consent would and wouldn’t be required

• when a DNA sample needs to be obtained,
• when informing someone that their DNA sample has been included in the database,
• when a person is allowed to appeal for the collection of his/her DNA data

DNA has become an important, crucial tool in solving crimes. It is important that there are safeguards to protect human rights and prevent miscarriages of justice in the process. [caption id=“attachment_5863881” align=“alignnone” width=“1024”] Winter session of Parliament. PTI[/caption] The Bill lists national and regional DNA data banks that will be established and the collected data maintained in indices, including crime scene index, suspects’ or undertrials’ index and offenders’ index. It is yet to define if this will be a powerful, insufficiently transparent, or accountable body overseeing the process. There is a need to set up an independent ethics board to monitor key processes of the data banks and ensure that they are not been misused by investigative agencies while the DNA samples are being collected. Creating large databases is rarely a cost-effective approach to crime-solving. There are still a lot of unknowns, one of them being a concentration of the benefits from the Bill in the hands of the haves. Uneven technological capability and awareness countrywide is not a new problem, but will apply differently to different investigative agencies in the country.

Also in need of some clarity are some of the finer details of the process: Will the conflicts of interest be published for each board member when appointed? Will they be updated on an ongoing basis? Will all the board proceedings also be published? It is also not clear from the Bill whether the collected samples of DNA will also be used to resolve civil disputes. A number of privacy protections appear to be missing from the Bill. These include the need to restrict DNA profiling so that it uses only non-coding DNA — which remain silent and unused in everyday functioning and maintenance by the body. Sequences of non-coding DNA house markers, or identifiers, that are unique to every individual, and can tell two people apart with ease. It also has other sequences that can code for diseases, personal characteristics and medical conditions. Restricting DNA profiling to just non-coding DNA in a commonly-used international standard for the procedure, preventing the use of DNA profiling technology to reveal personal information that can be misused. All said and done, some important safeguards and cost-benefit analysis are still lacking for the Bill, which over time will need strong bridges across stakeholders, along with a system of monitoring for the authorities that are monitoring and regulating the technology’s use and applications. The author is co-founder and Managing Director of Cloudnine Group of Hospitals.