Aristotle suggested that transmission of heredity was essentially transmission of information. And this information was used to build an organism from scratch inside the female womb. Although the science is primitive, he was right in the way that information is transmitted from parents to their offspring. Modern genetics is built on studying such information which has been coded into each cell as DNA. Scientists are now able to sequence the DNA and extract valuable information about each individual and about the human species as a whole. They have been able to use such information to understand humans better; for example the identification of BRCA mutation responsible for cancer has nudged great strides in cancer biology. Another important application which has varied implications in society is the use of DNA in forensics. Although already in use since its discovery in 1995, the exponential rise in the significance of information extracted using DNA Profiling warrants regulation.

DNA Technology Bill

All major nations which use DNA Profiling have a legislation in place to regulate the use of the technology. However, in India the technology is completely unregulated even though successive governments have worked on such legislation since 2003. If global examples are not enough, the 2017 puttaswamy judgement has made such a legislation necessary. The judgement asserted that privacy is a fundamental right guaranteed by the Indian Constitution and that the right to privacy includes protection over the physical body. Therefore for the State to collect or store DNA data, a legislative mechanism principled on necessity and proportionality is requisite. 

Currently, DNA testing is being done on a very limited scale in India. There are about 30-40 DNA experts working in 15-18 laboratories. They are able to process only about 2-3% of the total need and even such limited testing in unregulated and unmonitored. According to the NCRB data for 2018, although 85% of rape complaints have been chargesheeted, the conviction rate for rape in just 27.2%. This technology, however, has a good record of increasing conviction rates; for example, a 2006 UK parliamentary report suggested that detection of crime increased from a mere 26% to a healthy 40% after DNA samples were loaded into a national database. Apart from crime detection, the technology will also help in identification of more than six million missing persons in India. Thus a legislation facilitating the DNA technology to help expedite justice is long overdue.

The DNA Technology (Use and Application) Bill, 2019 is the latest form of the DNA bill and is currently at the parliamentary committee stage for further deliberations. The bill, among other things, talks of a national DNA data bank and a DNA regulatory board to store DNA data and regulate DNA technology used in criminal and civil cases. The bill in its current form has raised many concerns including privacy issues with respect to use of DNA data, the ‘perfunctory consent’ clause which makes it hard for an individual to deny permission to collect his/her data, ethical issues in collecting and storing DNA data in DNA banks, the fear of caste based criminal profiling due to the endogamous nature of Indian society and so on. But the biggest concern is one of state capacity which in a way umbrellas other concerns.

Problems with State Capacity

In young nations like India, the State, although large and bloated, is not highly effective and efficient. This may cause even government interventions with noble intentions to backfire. Therefore it is necessary to identify places where lack of state capacity could cause worry in order for the legislation to work effectively. 

Three basic concerns could be summed up from the DNA Technology bill with respect to state capacity. Firstly, the high cost of the technology and lack of basic technological training with respect to data collection in a crime scene. Secondly, the issue of backlog burden with respect to the Justice system. And finally, the lack of clarity in the bill as to what is being collected and stored.

The India Justice Report 2019 published by Tatatrusts reveal important information on the Justice system in India. Over the last five years, only 6.4% of the police force have been provided in-service training. For an advanced technology like DNA fingerprinting, frontline police should have basic training and knowledge of the technology. It starts from how to read and deal with the crime scene. And without awareness, the technology cannot be exploited desirably. To go from training 6.4% to at least half the police force will become a herculean task which should be contemplated before implementing the legislation. The DNA bill gives the responsibility of developing training modules to the DNA Regulatory board which will be set up. But, it does not provide a realistic road map to reach the desired level of training to better use the technology. 

The report also suggests that on average, per-capita police spending in 2017 was Rs 820. No big or medium sized state has spent more than Rs 1160 per person and Bihar has spent as low as Rs 498. Only one state has made 100% use of the modernization funds allocated for capital expenditure and technology upgradation. But DNA fingerprinting technology is a costly affair. Each test could cost as much as Rs 10,000. Even if only high profile cases use DNA tests, a robust database of DNA has to be present for effective identification from the three indices mentioned in the bill. And such collection and storage of DNA samples could become another strain in the public exchequer. The bill also mandates the use of DNA testing for criminal as well as civil cases which could again flood the system.

Secondly, the DNA technology could increase the backlog burden of the already burdened system. In the US, with relatively strong state capacity, DNA backlogs are in the thousands. The National Institute of Justice (USA) reports that the current backlog of rape and homicide cases is 350,000. It also estimates that there are ‘between 500,000 to 1 million convicted offenders samples that are owed but not yet collected’. Additionally, the FBI has a backlog of approximately 18,000 convicted offender samples. Therefore in India with an already strained Justice system, DNA backlogs could cause worry. Also due to the significance of DNA information, backlogs could also invoke privacy concerns.

Finally, there is a lack of clarity. This concern however is not one of lack of state capacity but one of potential overreach by the State.

Non-coding DNA is used for identification purposes. The bill, however, does not restrict DNA Profiling to only use non-coding DNA which cannot be used for determining personal and medical characteristics. Given that the bill mandates data from all criminal and civil cases to be stored in the National data bank, concerns of privacy impingement cannot be hushed away. The lack of strong data protection legislation in place couples such concern. As the parliamentary committee suggests, the bill can also be termed ‘premature’ with respect to data protection. 

Although the bill is creating a strict code of ethics with respect to collection, storage and accessibility of  DNA information, it is ambiguous on removal of data. Clause 31(3) says that DNA data will be removed if a person requested in writing to the DNA bank, given that such a person is ‘neither an offender nor a suspect or an undertrial’ and whose DNA information has entered into the bank ‘through crime scene index or missing persons’ index’. But it is not quite clear on what will happen if such data is not removed. It is important to answer these questions due to the significance of DNA information and the fact that the bill does not restrict banks to store only non-coding DNA. Also these questions could raise concerns about state capacity in safeguarding important data of its citizens.

Conclusion

To address these concerns, building state capacity is the key. A staggered implementation of DNA technology could help in building capacity and credibility for the technology. For example, if the bill provides a roadmap of implementation- say, starting with addressing the identification of missing persons and further developing capacity for criminal and civil investigation, allocation of resources could be streamlined. This limited implementation could also help in addressing new issues that could arise during implementation. These details cannot be let out to be decided by a regulatory body because of the importance of DNA data and the breach of fundamental rights in collecting and storing it.

It is said that one has to cross the river by feeling the stones. The stable rule of law and a robust data protection regime which will make sure the technology is used judicially are basic requisites for a technology with societal implications. Even though DNA profiling  has huge potential to expedite justice, implementation of such complex technology has to be step by step. The Parliamentary Committee on Science and Technology has been scrutinizing the bill rigorously contemplating the varied problems that might befall the implementation of the bill. But it remains to be seen if the government will heed to such advice and not dismiss them altogether; that is, if it will feel the stones or deep dive into the river without contemplating the consequences.