Law

Government Invites Comments on DNA Profiling Bill, Even if Belatedly

A DNA representation. Credit: creativecomputer/Flickr, CC BY 2.0

A DNA representation. Credit: creativecomputer/Flickr, CC BY 2.0

The Department of Biotechnology, under the Ministry of Science & Technology, is soliciting feedback on the Human DNA Profiling Bill, a scanned copy of which has been uploaded to the DBT website – accessible here. It is dated June 9, 2015, and is accompanied by some handwritten corrections. Public feedback is being solicited after the Bill was slated to be introduced in the monsoon session of the Parliament. However, the introduction eventually didn’t happen at all thanks to the washed out session.

The last date for submitting feedback is August 20, 2015, at this email address.

On July 24, The Wire had reported on numerous shortcomings in the draft Bill, largely concerning the lack of accountability and privacy safeguards, as well as the absence of any financial memoranda. While a government representative – Dr. J. Gowrishankar, director of the Centre for DNA Fingerprinting and Diagnostics – had responded to our criticisms on July 25, he nonetheless didn’t mention if the draft Bill would or wouldn’t be modified in response to the issues we had raised.

However, the June 9 version of the Bill on which feedback from the people has been solicited differs from the working draft we had used, dated January 16, 2015.

In the new version, the table of contents and preamble aren’t included; Gowrishankar had previously noted that the Bill would be tabled without the preamble. However, it’s unclear why the table of contents was left out, too, apart from having uploaded a scanned version of the Bill.

Anyway, such minor changes have been made throughout the Bill, although a few significant changes stand out as well. For instance, Section 12(k) of the working draft—that the supervising DNA Profiling Board will be “making recommendations for maximising the use of DNA techniques and technologies in administration of justice”—has been excluded from the new version,

For another, the self-contradictory Section 14(2) of the draft Bill has been removed in the new draft, i.e. that DNA profiling labs already in existence at the time of passing the Bill needn’t get approval to perform tests. Now, all labs – no matter how old or new – will require the Board’s permission to serve the Bill’s interests.

While largely well-intentioned, the older draft Bill lacked watertight safeguards against the abuse of the DNA profiles that’d be stored in the database. Specifically, it abdicated the responsibility of defining best practices for extracting the profiles, didn’t define any operational costs, didn’t factor in any of the privacy-related course corrections suggested by the 2012 Report of the Group of Experts on Privacy, provided for no anonymisation protocols, and vested too many powers in the overseeing Board.

With the removal of Section 12(k), the new draft gives the Board a less self-indulgent ambit, even if the drafting committee hasn’t gone farther than that to ensure there will be independent regulatory oversight. In a previous conversation, Gowrishankar had said that such oversight would stem by default from Parliament, but the just-concluded monsoon session illustrates how important decisions concerning the database could be delayed simply because MPs are distracted by other commitments.

In a similar vein, the Group of Experts’ privacy recommendations are also still missing. Without them, the Bill doesn’t do the following things, even as they’ve come to be recognised as important limbs of an effective privacy law around the world.

  1. Provide notice that DNA samples were collected from so-and-so areas of the body
  2. Inform anybody – particularly the individual – if and when her/his DNA is contaminated, misplaced or stolen
  3. Inform a person if a case involving her/his DNA is pending, ongoing or closed
  4. Inform people when there are changes in how their DNA is going to be accessed, or if the way their DNA is being stored or used is changed
  5. Distinguish between when DNA can be collected with consent and when it can’t
  6. Say how volunteers can contribute their DNA to the database even though the draft Bill has a provision for voluntary submissions
  7. Provide any explicit guarantee that the collected DNA won’t be used for anything other than circumstances specified in the Bill
  8. Specify when doctors or the police can or can’t access DNA profiles

The new draft also contains a new provision — under Section 24(5) — that DNA profiles’ databases will be set up in individual states as well without saying if the same safeguards that apply to the national repository will apply to the regional ones. So, as a result of all these omissions the new draft Bill remains, like its previously availed version, in a suboptimal state.

Usually, draft legislation is opened up for public feedback well before it is set to to be introduced in Parliament. Had the Bill been introduced as originally planned, there would have been no opportunity for ordinary citizens to comment on the draft. In the event, the bill could not be tabled and the public now has until August 20 to react to its provisions.