DNA data bank still a work in progress

Mukesh Ranjan

EVEN as Himachal Pradesh claims to have become the first state to embark on creating a DNA database to make the criminal justice delivery system quick and robust in cases relating to heinous crimes, repeat offenders and identification of disaster victims, the effectiveness of this scientific investigative tool can only be realised if the country has a national law in this regard, which is on the anvil.

Union Minister for Science and Technology Jitendra Singh says work on strengthening DNA analysis and cyber-forensics under the Nirbhaya Fund Scheme is under progress and the government has been considering proposals to regulate the evolving DNA technology.

The DNA Technology (Use and Application) Regulation Bill sets out to provide “regulation of the use and application of Deoxyribonucleic Acid (DNA) technology with the aim to establish the identity of certain categories of persons, including the victims, offenders, suspects, undertrials, missing persons and unknown deceased persons”, the Minister recently said as part of his reply to a question in Parliament.

The Bill has a provision to set up DNA data banks across the country and to store DNA profiles to track these categories of people. He also said that the Directorate of Forensic Science Services (DFSS) of the Union Ministry of Home Affairs has issued quality manuals and working procedure manuals for the biology and DNA division, and guidelines for collection of forensic evidence in sexual assault cases along with the standard components in a sexual assault evidence collection kit.

Assistant Director of the Directorate of Forensics Services, Himachal Pradesh, Vivek Sahajpal says the organisation has procured DNA profile databasing and matching technology from the US and the database is being prepared. It has a capacity of about 20,000 DNA profiles, which can be scaled up.

“With this software, the DNA profiles can be maintained as a searchable database and shall be immensely useful in providing investigative leads and disaster victim identification. In future, it will also come in handy in keeping a check on the movement of criminal elements across borders,” Sahajpal told The Tribune. But he noted that for this technology to become effective, “we need a law at the national level to regulate collection and usage of DNA technology”.

However, experts express divergent views on the issue, laying stress on privacy and data security.

A section feels that the DNA database, both regional and national, would help in improving the quality of conviction, aid the judiciary in reducing the backlog of pending cases, and increase their ability to solve cases, backed by scientific validation. The data bank could help in expediting justice and lead to an overall rise in the conviction rates, they opine.

A senior police officer says he supports storage of DNA fingerprint data even though it may violate Article 14, the doctrine of proportionality, right to equality, right against self-incrimination and right to privacy under Article 21. “Many cases of terrorism, infiltration, suicide bombing remain inconclusive for want of clinching evidence like DNA fingerprints. Spots of such cases are littered with human biological tissues. Confirmation of death of terrorists and connecting dots with other incidents require such a database,” he adds.

“We are living in dangerous times. The state is itself under threat. Protection and security of the state is necessitated to protect citizens. Extraordinary situations in the life of nations require extraordinary measures. Civic and fundamental rights of citizens can be protected only if the benevolent democratic state remains secure,” the police officer says, citing the example of CCTV cameras, which were opposed initially as being an intrusion into privacy and are now sought by citizens everywhere.

The gangrape and murder case of a 16-year-old in Himachal’s Kotkhai was solved with the help of DNA testing. In the cases of Priyadarshini Mattoo and Nirbhaya, the courts delivered their judgments with the help of DNA evidence. Recently, the Supreme Court granted bail to an 84-year-old man accused of rape after the DNA report established that he was not the father of the child born to the rape victim.

However, the director of the Rights and Risks Analysis Group, Suhas Chakma, is of the view that the provisions for creation of a national DNA data bank of a crime scene “equate the victims, offenders, suspects, undertrials, missing persons and unknown deceased persons in the same category”.

Chakma says the government cannot enact a law to equate convicts with non-convicts, who are innocent until proven guilty. “The proposed law violates cardinal principles of criminal jurisprudence and constitutional guarantees to be treated as innocent until proven guilty.

“A crime scene under the Bill is so vaguely and broadly defined that it includes crime of domestic violence, to democratic protests which may turn violent, to terrorism. One can imagine the potential for its abuse in cases of riots and democratic protests turning violent and therefore, a crime scene. Targeting particular communities or political opponents using a broad definition of a crime scene is an absolute possibility.”

Noting that a number of countries in Europe which are using DNA data bank have strong data protection laws, Chakma says, “The Supreme Court in the case of Puttuswamy vs Union of India held the right to privacy as a fundamental right protected under Part III of the Constitution, but the Government of India has been putting the cart before the horse by seeking to collect data before enacting the law for data protection.”

Supreme Court lawyer Sanjeev Sahay says the DNA Technology (Use and Application) Regulation Bill, 2019, provides for the regulation of use of DNA technology for establishing the identity of persons. “This Bill can be very useful in identifying criminals and crimes committed by them. If implemented with proper mechanisms and safeguards, it can provide a useful database, which can eventually help in curbing crime. Collection of DNA profiles is prevalent in many countries.”

Sahay, however, contends that the way the police work in India, there is always a possibility that the consent of those whose DNA is to be taken can be obtained under undue fear and coercion.

“In India, there is hardly any mechanism to protect and preserve crime scenes. The police often come late and it is the innocent bystanders or chance persons who reach the spot first,” he adds.

A government official, while addressing the apprehensions on the DNA Technology (Use and Application) Regulation Bill, says the proposed law provides that data can only be made available to the law enforcement and criminal justice system.

The Bill, he says, specifically mentions that the DNA samples will be collected from a person with his or her consent except for offences that are punishable with death or imprisonment terms exceeding seven years.

DNA testing in India

• DNA testing in India is performed at a very low rate and on a limited scale.
• As per the Department of Biotechnology, approximately 30-40 DNA experts in 15-18 forensic laboratories undertake fewer than 3,000 cases in a year. This means only 2-3 per cent of the total requirement for DNA profiling is being met at present.

Global Scenario

• Around 70 countries, including the US, UK, Canada, Malaysia, South Africa and Australia, have DNA data banks. This helps them investigate criminal cases and expedite justice.
• The Royal Malaysia Police has analysed and accumulated more than 1,39,000 DNA profiles in the national data bank since 2013.
• During the initial years, there were only 13,000 DNA profiles, resulting in two matches whereas in 2018, one lakh profiles were successfully uploaded to the Malaysian database, leading to 33 DNA matches.

Where the country stands

• The DNA Technology (Use and Application) Regulation Bill was first introduced in the Lok Sabha in 2019 and again in February 2021 by Uinion Minister for Science and Technology Jitendra Singh, and is under consideration.
• The primary objective of the DNA database is to enable the profiling of victims, those accused of crimes, those reported missing, and storing of their DNA information in national and regional data banks.
• It also aims to regulate the use of DNA profiles for lawful purposes in establishing identity in criminal and civil proceedings.

What is DNA bank

• It is a secure storage system for an individual’s unique identity for future use. To store DNA of an individual, a small blood or saliva sample or hair is taken, and then DNA is extracted using state-of-the-art micro-biological tools. This provides an individual’s identity on the basis of his/her unique genetic makeup. This means the process can be useful in more accurately solving crimes.
• Forensic scientists can compare DNA found at a crime scene (from blood or hair, for example) to DNA samples taken from suspects. If there is no match, they may be able to rule out the suspect’s involvement. But, if there is a match, police will move further in their investigation and courts can decide a case in the minimum possible time.