With a decade-long history of deliberations, the DNA Technology (Use and Application) Regulation Bill 2018 is no stranger to the halls of Parliament. It is currently being scrutinised by the Parliamentary Committee on Science and Technology, after it was reintroduced in the Lok Sabha earlier this year.
The Bill seeks to regulate DNA laboratories and proposes to establish a DNA databank, although there are already many unregulated DNA databases with various authorities. There seems to be widespread support for use of DNA evidence, primarily on the understanding that (i) it is “new scientific technology” used widely around the world; (ii) India needs modern weapons to fight crime; and (iii) similar laws exist in other countries, including the US, the UK, Ireland and South Africa, for helping convict criminals and acquit innocent persons.
However, there are three broad areas of concern – capacity, training and consent – that authorities need to iron out before unleashing the DNA Bill in India.
DNA fingerprinting is a forensic tool that experts have used in India without a proper legal framework. This Bill provides the legal basis to establish a DNA databank to house the DNA profiles of suspects, criminals and unidentified bodies (allowed by the Supreme Court in 2011 in the case of Surendra Kolli v. State of UP).
However, India has poor infrastructure to rapidly perform and analyse DNA fingerprinting. Unlike normal fingerprinting, crime scene samples need to be collected, stored and analysed under controlled conditions. In the case of Rajiv Singh v. State of Bihar (2011), the Supreme Court dismissed improperly analysed DNA evidence. However, in the case of Jitendra v. State of MP (Cr. Appeal No. 596/2013), the Madhya Pradesh high court admitted DNA evidence despite the defence’s (summarily dismissed) complaints against the procedure adopted to gather and present it.
There is a risk that all those who support the use of DNA evidence have high expectations and don’t understand the inherent risks and limitations of this technology. According to one 2017 estimate, the UK completes DNA tests on over 60,000 crime scenes every year whereas India’s crime labs manage approximately 7,500 scenes. This lack of capacity will only stall criminal cases further instead of expediting their result.
Even if we developed the capacity to undertake DNA fingerprinting at scale, the operational use of the results isn’t clear. There is a case to use DNA fingerprinting to identify corpses (as in the case of Surendra Kolli) or a suspect based on samples from a victim’s body or clothes, but the confidence with which we think we can establish these matches is misplaced.
The DNA molecule is relatively stable in a variety of ambient conditions spreads easily (our bodies shed about 50 million skin cells a day). So the presence of one person’s DNA at a crime scene could easily be casual. For example, in Jitendra v. State of MP, the high court recorded, “There is no direct evidence to connect the appellants with the crime alleged to have been committed by them. Prosecution case is based on circumstantial evidence.”
There is also the risk of contaminating DNA samples if they’re improperly collected, stored and analysed. When the defence counsel raised this issue in Jitendra, the high court ignored their well-founded challenges: “Various arguments advanced to attack the DNA report do not cut any ice. The arguments were highly technical and specious like no proof of the proper sealing of sample, samples being the same, etc.” The judiciary completely failed to understand the limitations of ‘evidence’ presented by the prosecution, especially when all other prosecution evidence had been rejected.
This, together with several decisions of the apex court, suggests there is growing confidence in using DNA evidence as a silver bullet to award convictions. Judges, lawyers and DNA analysts have to be adequately trained before they can appreciate the context in which DNA evidence is presented in court, what it does and doesn’t say and how that affects the facts of a case.
Unlike most other countries, India doesn’t have an effective public defender system, and legal aid centres haven’t been able to significantly help the victims or the accused. Lawyers and trial judges often lack the expertise to be able to appreciate DNA evidence presented as a scientific fact; moreover, labs and experts that testify don’t present the information in a way that states the results – and their limitations – fairly. The prosecution routinely only presents evidence that favours a conviction, not all the evidence. There isn’t a sufficient body of independent experts to help the accused verify the prosecution’s evidence and expert reports during cross examination. Finally, the prosecutor often allows illegally collected evidence to be presented at trial.
In the absence of these elements, the “new scientific crime fighting technology” will only erode our basic constitutional protections. Other similar technologies like “narco tests” and “brain mapping” have failed the test of constitutionality before (Selvi v. State of Karnataka), even before the privacy case (Puttaswamy v. Union of India). There is also a real risk that the current draft of the DNA Bill ignores basic constitutional protections against self-incrimination (Article 20(3) of the Constitution).
Finally, there is the looming concern over consent and privacy violations brought on by the creation of another databank. The widely debated privacy legislation must address the privacy issues but officials have to treat DNA data more carefully because it discloses information that could be used against a group of individuals (e.g., a family and its ancestors and descendants).
Additionally, there is a lack of awareness about the value of DNA and its use in wider society. There are very few cases where the accused have been aware of their rights. Even when lawyers or others breach procedural safeguards, courts routinely allow evidence to be used against the accused. Even within the DNA Bill, magistrates can – without any clear guidelines or limitations – overrule refusal to consent. This flies in the face of the judgment of the Supreme Court in Puttaswamy v. Union of India. Experts will now have to review case law and provisions of the Criminal Procedure Code afresh.
There is no automatic mechanism to purge the data of persons from the databank once a case is over. Instead, these people have to apply to have the data deleted; even then, there is no way to verify that data is gone. The Bill also frees courts of the responsibility to apprise suspects of this requirement, and given their poor awareness, there’s no indication of how this procedure will play out. These are primarily foreign operational mechanisms, and if they’re going to be imposed on an ill-prepared Indian society, chaos is the likely outcome. So it is imperative that we educate the Indian people, the national justice system and analysts of DNA data before the DNA Technology Bill becomes an Act.
One can always argue that we can address capacity and training after the Bill has been introduced – but if it’s legislated, the Bill could perpetuate injustice like in Jitendra. In fact, in its current form, the Bill attempts to do too much, including regulating DNA laboratories (a step in the right direction) and establishing a DNA databank for a range of criminal and non-criminal activities.
We recommend the following measures to address these concerns:
* DNA evidence should be admitted only with the consent of all parties in a civil dispute
* Informed consent should be mandatory in criminal cases and for a period of time, and DNA evidence ought to be used only by the accused
* There has to be a separation of civilian and criminal databases and these should not be linked to any other databases
* A restriction against conviction (in criminal cases) or decree (civil cases) based solely on DNA evidence
* At the end of a trial, all the corresponding data from the database (and other places where the data from this database is stored or shared) should be deleted and lab samples destroyed
* The Bill should be implemented in a staggered way: the databank can be created first with the purpose of identifying human remains, followed by use in civil matters, then offences like sexual crimes, and finally others
The last point allows us the leeway to retrain ourselves and for jurisprudence to evolve apropos the use of DNA evidence. Creating a DNA databank could in the long run expedite justice but not unless it’s supported by infrastructure and the people’s trust. Without these pillars, it could well damage our system of justice, which is already facing a crisis of confidence.
Shambhavi Naik obtained her PhD in cell biology from the University Of Leicester and is a research fellow at the technology and policy programme, Takshashila Institution, Bengaluru. Murali Neelakantan is a lawyer and author of DNA Testing as Evidence – A Judge’s Nightmare (1996).