Editorial Simplified: Towards a Genetic Panopticon | GS – III

Relevance : GS Paper III (Science and Technology)


Theme of the article

The DNA Bill will give the state untrammelled access to deeply personal and penetrating material.


Why has this issue cropped up?

The DNA Technology (Use and Application) Regulation Bill, 2018 is to presented for consideration by the Rajya Sabha.


Problems with the draft Bill

  • It disregards the serious ethical dilemmas that are attendant to the creation of a national DNA database.
  • It virtually treats DNA as infallible, and as a solution to the many problems that ail the criminal justice system.
  • Any infringement of civil liberties, caused by an almost indiscriminate collection of DNA, is seen as a legitimate trade-off made in the interests of ensuring superior justice delivery.
  • The proposed law is not only vague on how it intends to maintain this DNA Bank, but it also conflates its objectives by allowing the collection of DNA evidence not only in aid of criminal investigations but also to aid the determination of civil disputes.
  • Given that in India, even illegally obtained evidence is admissible in a court of law, so long as the relevance and genuineness of such material can be established, the Bill’s failure to place sufficient checks on the use of DNA evidence collected in breach of the law makes the process altogether more frightening.

Why do we need a DNA law?

  • The genes encoded in deoxyribonucleic acid (DNA), which can be collected from blood, hair, skin cells and other such bodily substances, have undoubtedly proven to be an important tool in forensic science.
  • Much like fingerprints, a person’s DNA profile is unique (except in the case of identical twins) and can, therefore, help in establishing the identity of, say, a suspect.
  • That only a small amount of genetic material is needed to create such a profile makes the form of evidence especially appealing to criminal investigators.
  • Across the world, the use of DNA evidence has helped exonerate a number of innocent people from wrongful conviction, and has also helped find the guilty party in complex investigations.
  • Thus, we need a law to help regulate the manner and circumstances in which the state may be entitled to collect biological material from a person.
  • The requirement for such a law is only accentuated by an amendment made to the Code of Criminal Procedure in 2005, which expressly authorises investigating officers of a crime to collect a DNA sample from an accused with the help of a medical practitioner.
  • A range of privacy protections that are absent in the Bill.

State’s coercive power

While consent is not required before bodily substances are drawn from a person accused and arrested for an offence punishable with either death or imprisonment for a term exceeding seven years, in all other cases a person refusing to part with genetic material can be compelled to do so if a Magistrate has reasonable cause to believe that such evidence would help establish a person’s guilt. Therefore, there’s no end to the state’s power in coercing a person to part with her DNA.


Right to privacy

  • In August 2017, the Supreme Court in Justice K.S. Puttaswamy v. Union of India declared that the Constitution recognises a fundamental right to privacy, it also explicated the various facets of this right. Significantly, it ruled that any meaningful right to privacy would include protection over the physical body.
  • A 2012 report filed by a group of experts on privacy, led by Justice A.P. Shah, found explicitly that a person’s basic liberties stand violated by a compelled extraction of DNA from her body.
  • The state must show that there exists a legitimate reason for extracting DNA evidence, and that the extent and scope of such extraction does not disproportionately contravene a person’s right to privacy.

Conclusion

To enact the law in its present form would only add a new, menacing weapon to the state’s rapidly expanding surveillance mechanism. We cannot allow the benefits of science and technology to be privileged over the grave risks in allowing the government untrammelled access to deeply personal and penetrating material.