Replies to the government’s concerns with our criticism of the DNA Profiling Bill

In response to the piece ‘Modi Wants the DNA Profiling Bill Passed Right Away. Here’s Why It Shouldn’t Be‘, published July 24, 2015, Dr. J. Gowrishankar, Director of the Centre for DNA Fingerprinting and Diagnostics, wrote a spirited response describing the benign intentions behind the Bill and why there is a real need for it in India, where the criminal justice system is known to be tardy.

I agree with large sections of his response, but am disappointed that they don’t address any specific points of failures – especially the lacklustre privacy and accountability safeguards. This is also why I don’t ask for the Bill to be shredded but that it be referred to a Parliamentary Standing Committee (at least) before it can be tabled. The following is a an unnumbered ‘listicle’ of my replies to Gowrishankar’s response.

That a part of the Indian Bill’s strength lies in having borrowed parts of laws from other countries, where DNA profiling has been around for more than a decade

The text of India’s Human DNA Profiling Bill may in large part be based on that from the USA, UK, Canada, etc., but many of the problems that the Bill could exacerbate are unique to India – such as the many privacy and accountability concerns highlighted in my article. Those parts of the Bill can’t be compared to what’s happening in the West. In fact, the USA, UK and Canada also have legislations in place that explicitly specify how the DNA profiles can be collected, the best practices for storing and indexing them, as well as who can access them, in what circumstances and how. TheDNA Identification Act 1994 (USA) specifies that all federally supported DNA labs comply with operational standards for collection, storage and analysis set by the FBI. The Criminal Justice and Public Order Act 1994 does the same in the UK. The DNA Identification Act 1998 (Canada) also does the same and further requires a periodic review of itself every five years.

That DNA profiling has a steadfast record in being able to solve disputes and that my skepticism of it is misplaced

Yes, DNA-profiling has a fabulous track record in settling disputes. However, the drafting committee, as well as anyone interested in the Bill’s tabling, would do well to learn from the mistakes of those who have been systematically pressing DNA-profiling to the resolution of civil and criminal disputes in modern times. I am skeptical of the technique – as I’m skeptical of all techniques – so I’ve asked that the Bill be cognisant of the various statistical blips and prescribe best practices to eliminate them. As I write in my article: “This isn’t to say that a reliable [match] can never be arrived at, but only that the draft Bill does not have the commensurate depth required to identify and tackle the sort of statistically motivated mistakes in DNA profiling. In fact, it also abdicates itself from specifying any best practices for the collection, storage and analysis of DNA samples…”

That only identity-neutral information derived from a person’s DNA will be stored in the database

The Bill doesn’t say this. As far as the draft document is concerned, the contents of the database are profiles – not identity-neutral profiles, just profiles. I respect your attitude to privacy but I only ask that it be reflected fully in the Bill as well.

That a database of DNA profiles will only contain the profiles of offenders, missing persons, unidentified bodies and volunteers and that its regulation will, beyond the Bill’s sanctions, require judicial oversight

Bringing criminals to justice faster is a good aspiration to have, but it must be done not at the expense of anybody’s privacy and definitely while the government’s actions – in the form of the Board’s – are always accountable. On the question of retention: it’s understandable if you want to store the profiles of those who are repeat offenders – but why indefinitely? The law in the UK stipulates that profiles can be retained for a maximum of six years. And what’s the rationale behind storing the profiles of those who have been sentenced for life or to death?

That the Board has been given discretionary powers to empower them to keep up with advances in DNA profiling, and that the Board will be staffed by, for example, the Chairperson of the NHRC

Those staffing the Board may be upstanding folk but the Bill has a responsibility to account for the worst of times as well. I don’t want to have to keep a check on who’s on the Board and who’s not – I want the Bill to provide guarantees once and for all that things won’t go wrong. Please also note that the Bill is scheduled to be introduced at a time when the country’s leadership is unwilling to accept that the right to privacy is a fundamental right, at a time when the Central government insists on interfering in the management of highly regarded public institutions. I can only read the Bill’s intentions through the lens of the government that will enact and, ultimately, be responsible for enforcing it.

That the DNA profiles’ database will contain only digital information and not the physical samples from which the data has been derived

I have already stated that setting up the Indian database will incur a one-time cost of Rs.20 crore. And on the other hand, I would like you to explain who will pay for acquiring the DNA profiles at costs that could well run into thousands of crores. In fact, the Bill does not contain the word ‘cost’ in it and seems unconcerned about how its implementation will be funded.

Next, on the question of whether the DNA database will store the physical samples from which the profiles will be derived: Usha Ramanathan – a researcher and advocate who was a dissenting member of the Bill’s drafting committee – has revealed an email communication she had with Gowrishankar dated June 25, 2014, in which he states the following:

“On your question of destruction of DNA collected from the relatives, I wish to state that the CDFD has so far not destroyed any DNA sample received by it since its inception. These samples are being maintained in safe custody in the institute. Once again, it is my assessment that the policy on such destruction needs to be developed and evolved by the proposed DNA Profiling Board.”

As a result, could the costs could be comparable to the NDNAD in the UK?

That my criticism has cherry-picked facts from the Bill

I have cherry-picked facts, but never out of context (that’s the reason the article runs into 4,000 words). I still want a Human DNA Profiling Bill to be passed and agree with you that it has benefits – but it gets to them at a great cost. That’s why I’d like to repeat my statement that the Bill be referred to a Parliamentary Standing Committee, and its niggling as well as substantial issues be resolved to everyone’s satisfaction, before it’s tabled.

The Wire
July 25, 2015

Featured image credit: stewdean/Flickr, CC BY 2.0.