OVERREACHING DNA POLICIES IN INDIA
By Elonnai Hickok

Introduction

 

Over the years Indian law enforcement agencies have been permitted, through evolving legislation, to collect material containing DNA as a way of providing additional evidence for the conviction of criminals in India. Starting in the 1920s, the collection and use of biometrics for identification of criminals legally began for India with the approval of the Identification of Prisoners Bill.[1] The object of the Bill is to “provide legal authority for the taking of measurements of finger impression, foot-prints, and photographs of persons convicted or arrested.”[2] The Bill is still enforced in India, and in October 2010 was amended by the State Government of Tamil Nadu to include “blood samples” as a type of forensic evidence. Other Indian legislation pertaining to forensic evidence is the Code of Criminal Procedure (CrPc) and the Indian Evidence Act. In 2005, the CrPc was amended to authorize investigating officers to collect DNA samples with the help of a registered medical practitioner.[3] Both the CrPc and the Indian Evidence Act fail to address the collection and testing of DNA effectively as they do not set procedures for how the DNA samples should be collected, stored, shared, accessed, secured, and destroyed.

Though India allows the collection of DNA samples by law enforcement agencies for identification purposes, it does not have a national law in force that regulates how governments collect, store, create, and use DNA profiles of accused persons. A DNA profile is created when DNA samples are taken from individuals and are analyzed in laboratories to produce a digitized representation of the sequence. Once created, a DNA profile is stored on a database with other identifying information from the individual and information from the crime scene. Creating DNA profiles and using them to solve crimes has been a growing global practice over the past two decades. Despite the lack of explicit safeguards and regulations, both governmental and non-governmental laboratories have been collecting, testing, and storing DNA samples/profiles for many years. These laboratories function off of internal policies and run DNA tests for both forensic purposes (identifying criminals, victims, etc., conducted by both private and public labs) and personal purposes (paternity and medical, conducted by private labs).

Proposed Legislation

In the past few years, two pieces of legislation that serve to regulate the use of DNA for forensic purposes have been drafted or proposed in India. The most recent legislation, titled the Privacy Bill 2011, was leaked to the public in the spring of this year. If passed, the Bill will allow for the collection of DNA samples only with the consent of an individual, and will prohibit the public disclosure of such information to the extent that it will adversely affect an individual’s right to privacy in a way that would amount to a civil wrong. Though the Bill creates an important standard by mandating consent, it fails to comprehensively protect and regulate the use of DNA data.[4] In 2007, a Bill known as the Draft DNA Profiling Bill was piloted by the Centre for DNA Fingerprinting and Diagnostics, an autonomous organization funded by the Department of Biotechnology in India’s Ministry of Science and Technology. The Bill is pending in Parliament, and aims to legalize the collection and analysis of DNA samples for forensic purposes in order to “enhance the protection of people and administration of justice through analysis of DNA found at the crime scene, and establish identity of victim and offenders.” In its current state, the Bill would permit DNA to be collected and stored in a way that raises many concerns related to privacy and civil liberties.

Most concerning, through a list that outlines the circumstances in which DNA can be collected, the  Bill allows for the DNA of innocents who are not related to a crime scene,  are not victims, and are not  criminals to be added to DNA databases.[5] This list can be expanded by the DNA Board as they deem appropriate.[6] Furthermore, the Bill does not specify at what point exactly DNA can be collected e.g., whether the DNA can be collected on arrest or on charge, whether the DNA has to be directly relevant to the offence, whether the police decide this for themselves, and what are the oversight mechanisms for these decisions. Permitting the collection and storage of innocent people’s DNA is dangerous for many reasons and extends the core rationale of collecting DNA far beyond “for forensic purposes.” As noted by the American Constitution Society for Law and Policy, by adding the DNA data of individuals with no discretion to these databanks, the governmental intent is presumptively changed from one of criminal investigation to population surveillance.[7] The debate over holding an innocent person’s DNA is key to understanding the core of what can and should be protected when formulating safeguards and regulations. Does the state ever have an interest in DNA aside from criminal identification? If so, should the government collect the DNA explicitly for that purpose?

Even in maintaining data for investigative purposes, there are questions as to which data should be kept.  On the one hand, conviction is a bright line. On the other hand, if there was significant evidence but not enough to convict, is the Government justified in wanting to keep evidence in case a pattern of crime starts emerging? Is the answer the same for all countries? For all crimes? Is the answer derived from a fundamental understanding of state versus individual or is it a reflection of a specific national ethos? Who decides?

Another area of concern is that the Bill allows for the complete storage of DNA samples and DNA profiles from volunteers, suspects, victims, offenders, children (with parental consent) and convicted persons.[8] Complete DNA samples taken from individuals contain unlimited genetic information (including health-related information) and are not needed once the profile is created. The primary purpose of retaining DNA profiles on a criminal database is to help identify the individual if they reoffend-not to exonerate innocent people or solve past crimes. Stored DNA profiles could in theory be used to track any individual on the database or to identify their relatives, so strict safeguards are needed to prevent misuse.

The comprehensive storage of DNA profiles is also alarming, because the Bill allows for the DNA Profiling Board to grant law enforcement agencies full and direct access to DNA profiles.[9] The primary argument for the creation of DNA databanks for convicted felons is for exact identification in order to help police solve crimes. Because forensic labs have developed extensive techniques that allow for lab technicians to gather information from DNA samples that is far beyond what is needed for the identification of a person,[10] and because the pool of DNA samples goes well beyond convicted felons, permitting unrestricted use of DNA databases is dangerous, and can easily be abused by law enforcement and private entities. DNA facilities are becoming more widespread in India through the establishment of multipurpose forensic laboratories accessible to law enforcement and intelligence agencies. For instance, new forensic laboratories with DNA testing facilities have recently been set up in Assam, Mumbai, and Hyderabad.[11] The growth of forensic labs in India has also come at a time when the Indian Government is pushing for stronger surveillance regimes, revamping policing systems, and passing legislation that permits intelligence agencies easy access to individually identifying material. For instance in 2010, the Government established NATGRID, a program which aims to link information from different databases such as tax, travel, financial, and criminal information. The linking of these databases will allow intelligence agencies to create comprehensive profiles of residents in India.[12] If law enforcement agencies are granted direct access to DNA profiles, it could be too easy for NATGRID to add DNA information to its collection of databases. Additionally, the Union Home Ministry has recently launched the Crime and Criminal Tracking System in Assam, Kerala and Uttar Pradesh. The system looks to facilitate collection, storage, retrieval, analysis, transfer and sharing of data and information between police stations, their state headquarters, central police organizations and other security agencies.[13]

Another scheme that could be used by law enforcement to collect and compile information in India is the Unique Identification project. The project aims to provide all residents of India with an identification number based off of their biometrics. It is envisioned that the number will eventually become ubiquitous throughout society, and individuals will use the number to access benefits, identify themselves to the police, apply for a passport, and open a bank account.[14] These regimes raise again the question: What is the Indian State’s interest in having and connecting identifying, storable, and trackable information of innocent individuals within its borders?

Taken together, the Bill permits the creation of a database comprised of DNA samples and profiles that are unrelated to solving a crime (including the ” identification of victims of: accidents, disasters or missing persons or for such other purposes”), which could be used for intelligence gathering and other forms of surveillance, not just for investigation of the specific crime for which the sample was taken.

Conclusion

In sum, although collecting DNA from victims and volunteers may be useful during the investigation of a crime, the DNA profiles obtained from persons who are not accused of and prosecuted for a crime are now being collected and stored in ways that opens the data to use-and possible abuse-for other purposes and by other agencies. One solution is to mandate that all DNA samples taken from persons who are not prosecuted (i.e., victims, witnesses, and others) be destroyed. Another solution, as suggested above, is that databases be segregated by purpose-missing persons, health alerts, convicted felons, and so on-and that DNA not be permitted to be transmitted across databases.

Over the past century, the collection of citizen data has become an essential aspect of governance. Current systems have become intrinsically dependent on the collection and analysis of information and citizen informatics. Governments have rationalized the collection of massive amounts of citizens’ data for reasons such as effectively delivering public services, ensuring equity, and maintaining justice. These databases function off of the notion that “bigger is better” and look to collate as much data as possible. Because the way in which a citizen’s information is stored, controlled, and used by the government defines the state-citizen relationship, the collection of genetic data raises important questions of privacy, civil liberties, and protection.

Elonnai Hickok is a Policy and Advocacy Associate for the Centre for Internet and Society. Find more of her writing at privacyindia.org.

 

Endnotes
1. The Prisoners Identification Bill was most recently amended 1981
2. http://lawcommissionofindia.nic.in/51-100/report87.pdf
3. Adhikary, Jyotirmoy. DNA Technology in Administration of Justice. Lexis Nexis. 2007 pg. 259
4. Privacy Bill 2011 Chpt. VI
5. Schedule of offences 5) Miscarriage or therapeutic abortion, b. Unnatural offenses, 7) Other criminal offenses b. Prostitution 9) Mass disaster b) Civil (purpose of civil cases) c. Identification purpose 10) b) Civil:1) Paternity dispute 2) Marital dispute 3) Infidelity 4) Affiliation c) Personal Identification 1) Living 2) Dead 3) Tissue Remains d) 2 (xxvii) “offender” means a person who has been convicted of or is under trial charged with a specified offense; 2(1)(vii) “crime scene index” means an index of DNA profiles derived from forensic material found: (a) at any place (whether within or outside India) where a specified offense was, or is reasonably suspected of having been, committed; or (b) on or within the body of the victim, or a person reasonably suspected of being a victim, of an offense.
6. Section 13(xxii) allows this list to be expanded by the DNA board.
7. Simoncelli Tania, Krimsky Sheldon. A New Era of DNA Colletions: At What Cost to Civil Liberties?. American Constitution Society for Law and Policy. 2007. pg.8
8. Section 35
9. Section 13(x), Section(2) The DNA Profiling Board may, by a general or special order in writing, also form committees of the members and delegate to them the powers and functions of the Board as may be specified by the regulations.
10. Simoncelli Tania, Krimsky Sheldon. A New Era of DNA Collections: At What Cost to Civil Liberties?. American Constitution Society for Law and Policy. 2007. pg.15
11. http://www.telegraphindia.com/1110707/jsp/northeast/story_14204831.jsp, http://dfs.gov.in/CFSLHyderabad/laboratorycfslhyderabad.htm, http://www.dnaindia.com/mumbai/report_mumbai-gets-it-s-very-first-state-of-the-art-forensic-lab_1066370; http://articles.timesofindia.indiatimes.com/2010-09-15/science/28230130_1_dna-database-dna-index-system-forensic-scientists
12. Unravelling NATGRID. Software Freedom Law Center. Retrieved from http://softwarefreedom.in/index.php?option=com_content&view=article&id=90%3Aunravelling-natgrid&catid=53%3Atalish&Item27
13. http://www.dnaindia.com/india/report_rs-2000-crore-national-terrorist-tracking-system-to-roll-out-today_1582245
14. The Unique Identification Bill 2010 www.uidai.org