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?