June 4, 2022, 2:40 p.m.
Pens of Law students
Author: Sadhana Swaminathan, is a 3rd law student currently pursuing her law from RGNUL, Punjab
One of the most groundbreaking discoveries in the field of genetics was an accidental one. In 1984, British geneticist Sir Alec Jeffery found his ‘eureka’ moment when he saw the X-ray film image of DNA that was left in a photographic developing tank overnight. The film showed a sequence of bars, indicating both similarities and differences between the DNA of the members of the same family. This meant that an individual can be identified by their distinct DNA. Jeffery, who wanted to study how diseases were inherited, ended up discovering a method that would revolutionize the criminal justice system. This method is called DNA fingerprinting and later came to be known as DNA profiling. DNA profiling is the process of analyzing a DNA sample to find out if that source of the bodily sample is identical to another. This method is used in locating criminals, establishing paternity and identifying unknown deceased and missing persons. It was initially used in immigration and paternity suits. DNA profiling was applied in forensic science for the first time in the Colin Pitchfork case. In 1983, the body of 15-year-old Lynda Mann was found in Leicestershire, UK. She was raped and strangled to death. The case remained unsolved as there were no suspects.
In 1986, in the same town, the body of another 15-year-old girl called Dawn Ashworth was discovered. She was also brutally raped and strangled to death. The police connected Ashworth’s murder to that of Mann’s. They arrested Richard Buckland, a 17-year-old boy with intellectual disabilities. Buckland confessed to killing Ashworth but denied the rape and murder of Mann. The police were perplexed as the modus operandi of both the murders was similar. They contacted Alec Jeffery who used his DNA fingerprinting method to compare the semen samples found in both the murders against a blood sample from Buckland. Jeffery concluded that the crimes were committed by the same person but that wasn’t Richard Buckland. Buckland was the first individual to have been found innocent by DNA profiling. Later, the killer Colin Pitchfork was arrested with the help of DNA evidence. This shows that DNA profiling not only puts criminals behind bars but also ensures the exoneration of innocents[i].
The United Kingdom was the first country to use DNA evidence in court and soon emerged as a world leader in using DNA in forensic science. It also established the National DNA Database in 1995, the first of its kind in the world. It is also one of the largest DNA databases containing 4.8 million profiles, which is nearly 8 per cent of the UK’s population and it grows every year[ii]. The effectiveness of the NDNAD can be measured according to several criteria; one of them is the match rate. Match rate refers to the rate at which a DNA sample collected from a crime scene matches the DNA of an individual already stored in the database. The match rate capacity of the database was highest in 2017~2018 at 66%.
DNA databases also serve as an effective tool to deter crimes. In a survey undertaken by economist Jennifer Doleac, it was observed that offenders of serious crimes whose DNA samples were in the system are 17% less likely to re-offend than those who haven’t given their samples[iii]. An offender is less likely to commit another crime if they know a DNA database exists. Thus a database like the NDNAD is effective in reducing recidivism.
Since its establishment in 1995, the NDNAD has become indispensable in the criminal justice system of the UK. But the steady expansion of this database has raised several questions regarding privacy and human rights. The UK government had mostly ignored such questions by asserting that the database does not store any sensitive genetic information. It allowed systematic and indefinite retention of DNA profiles of even individuals who were late acquitted. This was challenged before the European Court of Human Rights in S and Marper v UK in 2008. Mr S was a minor who was charged with robbery but later acquitted. Mr Marper was charged with harassment of his partner. But after reconciliation, the case was discontinued. Both S and Marper wanted their DNA samples that were taken during the investigation to be destroyed. But the police refused. The applicants applied for judicial review of the police’s actions but the administrative court rejected their application. The Court of Appeal upheld the administrative court’s decision and the House of Lords dismissed the subsequent appeal. Finally, the case was brought before the European Court of Human Rights. The court found out that there has been a violation of Article 8 of The European Convention for the Protection of Human Rights and Fundamental Freedoms[iv]. This judgment bought significant changes in the functioning of the NDNAD. Though the NDNAD has posed several threats to the civil liberties of the people, its effectiveness cannot be denied.
India decided to follow the UK’s example by setting up a DNA database. In Interpol’s global DNA profiling survey 2019, it was reported that 70 member countries have a DNA database. India is among the 89 countries that use DNA profiling in police investigation but do not have any database. It seems that India would soon join countries like USA, China and Canada by setting up its databank. The DNA Technology Regulation Bill was introduced in the Lok Sabha in July 2019. The bill later went to the Parliamentary Standing Committee on Science and Technology headed by economist and Congress MP Jairam Ramesh. The committee pointed out in its report how the provisions of the bill can be misused. The fifth chapter of the bill provides for the establishment of a national DNA databank and also a regional DNA databank for every state. The regional bank is required to share all the genetic data stored and maintained by it with the national bank.
The DNA bill of 2019, much like its predecessors, has been received with widespread criticism. The bill has provoked questions regarding the efficiency of DNA profiling, considering the present state of our criminal justice system, violation of the fundamental right to privacy and lack of proper safeguards for data. There is also a high scope for the misuse of sensitive genetic information for caste-based and minority based profiling. The DNA Regulation bill will allow the government to possess the most private and vulnerable information about an individual. Thus many groups have raised questions regarding the protection of privacy. India, at present, doesn’t have a data protection law. Congress MP Shashi Tharoor, who opposed the bill in Lok Sabha, said that one cannot put the cart before the horse, drawing attention to the lack of proper data protection law. In light of the landmark Puttuswamy judgment, which recognized the right to privacy fundamental right, this bill fails to assure that our genetic information will be properly safeguarded. The provisions of this bill can be manipulated to misuse data. This includes sharing of genetic data with pharmaceutical and insurance agencies[vi].
Another alarming concern raised about this bill is its scope for caste-based and minority profiling. The Parliamentary Standing Committee headed by Jairam Ramesh pointed out how some clauses of the bill can be misused for such profiling. As the data can reveal one’s ethnicity, caste and even skin colour, there is a high probability that a particular caste or community can be linked incorrectly with criminal activities.
The NDNAD has also faced similar criticism. Black men are more likely to be on the database than white men. Dr Alec Jeffery the founding father of DNA profiling found this over-representation of Black and other ethnic minorities in the NDNAD as very discriminatory. Recent studies show that two-thirds of Indian prisons are filled with prisoners from scheduled tribes and Dalits. The statistics are worryingly disproportionate. 13% of the total convicts are from scheduled tribes. But their total share of the Indian population is 8.6 per cent[vii]. This doesn’t necessarily mean that these communities commit more crimes but it shows that they are more vulnerable to exploitation by authorities. This scenario will only get worse with the passing of the bill as it can lead to caste profiling.
Despite having several ethical concerns, one cannot deny how useful a national DNA data bank can be. In 2019, over 73,138 children were reported missing, with 71% of them being girls[viii]. A national DNA with a separate missing person’s index can help reunite the missing individuals with their families. It can be extremely useful in nabbing criminals, especially in sexual assault crimes. It is worth reminding that the ilt of the rapists of ‘Nirbhaya’ was established by the Delhi police mainly with DNA evidence. With the help of a huge database, law enforcement agencies can solve crimes more efficiently. But what is the cost? Can the fundamental right to privacy of an individual be infringed upon for the sake of the greater good? In many instances, the rights of a few individuals, especially those from the marginalized sections, are sacrificed on the altar of the ‘collective good’ of the society. Though utilitarianism seems to be the more practical approach, the state should strike a balance by also taking note of the fundamental rights of its citizens. If the concerns over the bill are properly addressed, a DNA database would indeed revolutionize the criminal justice system in our country.
[i] Robin Mckie, ‘Eureka Moment that led to the discovery of DNA fingerprinting(2009) < https://www.theguardian.com/science/2009/may/24/dna-fingerprinting-alec-jeffreys> accessed 29 January 2022
[ii] ‘What is the UK National DNA Database?’(2014) https://www.yourgenome.org/facts/what-is-the-uk-national-dna-database > accessed 29 January 2022
[iii] Oscar Schwartz, ‘Do DNA databases make would-be criminals think twice?’ (2019) https://thewire.in/the-sciences/dna-database-crime-prevention > accessed 29 January 2022
[iv] Liz Hefernan, ‘DNA and fingerprint data retention: S and Marper v the United Kingdom’, (European Law Review, Vol 34, No 3,June 2005) https://www.researchgate.net/publication/299113198_DNA_and_fingerprint_data_retention_S_and_Marper_v_United_Kingdom > accessed 29 January 2022.
[v] The DNA Technology (Use and Application) Regulation Bill, 2019.
[vi] Payel Upreti, ‘What the DNA profiling bill means for your data privacy’(2019),< https://www.thehindubusinessline.com/blink/know/what-the-dna-profiling-bill-means-for-your-data-privacy/article28793951.ece > accessed 29 January 2022
[vii] Shemin Joy,’ Majority prisoners in Indian jails are Dalits, Muslims’(2020) < https://www.deccanherald.com/national/north-and-central/majority-prisoners-in-indian-jails-are-dalits-muslims-790478.html > accessed 29 January 29, 2022
[viii] Pavitra K.M, ‘Data: the number of missing children increases to 1.2 lakh in 2019’(2020) < https://factly.in/data-number-of-missing-children-cases-increase-to-1-2-lakh-in-2019/> accessed 29 January 2022