In April 2022, The Ministry of Science and Technology (MST) announced the draft DNA Technology (Use and Application) Regulation Bill. With this announcement, the MST notified that it would be training over 20,000 investigation officers, prosecution officers, and medical professionals to collect forensic evidence in cases of sexual assault using standardised sexual assault evidence collection kits. The DNA Technology Bill, in its draft, aims to set up DNA data banks across the country and DNA laboratories for testing and storing DNA profiles and use these for case resolution in crimes (primarily sexual assault). Preceding the draft, there was no specific legislation in India to outline the guidelines on DNA collection, storage and use in law enforcement. However, DNA evidence was covered under Section 45 of the Indian Evidence Act 1872 under ‘scientific evidence.’ While stakeholders have enquired about the expansion of DNA use across the justice system, the MST has yet to confirm such plans. This Bill, despite its novelty, has not introduced DNA evidence into the Indian legal system. However, DNA profiling and its use in law enforcement have been seen in India since Kunhiraman vs Manoj, 1991, on proof of paternity. Thus, the eventual extension of DNA profiling in other cases beyond sexual assault is justifiably anticipated.

The DNA Technology Bill, in its draft, aims to set up DNA data banks across the country and DNA laboratories for testing and storing DNA profiles and use these for case resolution in crimes (primarily sexual assault).

This Bill, while a noble attempt to address the existing gap in regulating the use of biological sample evidence, does bring up concerns around biases in law and the lack of privacy and dignity of individuals. Policymakers and relevant authorities must address these issues before such legislation extends to other areas of law enforcement.

The vicious cycle of data bias

The Bill lists civil matters where lawful procedures can use DNA profiling. The application areas cover controversial disputes relating to pedigree, issues pertaining to reproductive technologies, immigration or emigration, and issues relating to establishing national identity. The document needs to define how different stakeholders will apply the legislation in the aforementioned areas. It also covers offences under special laws such as The Immoral Traffic (Prevention) Act, 1956; The Medical Termination of Pregnancy Act, 1971; The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, amongst others. These laws, in isolation, already have criticisms for enhancing discrimination against the groups it claims to protect. For example, The Immoral Traffic (Prevention) Act discriminates against transsexual people who cannot access formal employment and are thus consigned to sex work and solicitation. With the insecurity over DNA laboratories hosting data, the existing biases in artificial intelligence, biases in existing databases and the algorithms it monitors, and the policies that use these, the scope of DNA information for forensic evidence is a contentious venture that harms minorities (DNA testing in medical or research laboratories can be used to identify individuals, backgrounds, relations and other personal information. It is unclear how the Bill intends to regulate data storage in such laboratories).

The application areas cover controversial disputes relating to pedigree, issues pertaining to reproductive technologies, immigration or emigration, and issues relating to establishing national identity.

The Bill highlights the need for court approval in civil matters, consent of individuals in criminal investigations, and identifying missing persons. However, the Bill still needs to outline the necessary consent requirements for use in civil cases, taking agency away from those who may be involved in civil disputes. Further, a segment of the Bill discusses the “taking of a photograph or video recording of, or an impression or cast of a wound from, a part of the body”. This inclusion indicates an incongruity in the Bill’s understanding of DNA evidence as biological samples to further include photographic forensic samples. The integration of photographic or video material in this legislation has created an unnecessary caveat in how this evidence can be collected, stored, and used, especially since such samples may go against privacy requirements (if the photographic forensic data is used in combination with other digitised data), even if the evidence espouses the collection guidelines within this regulation.

Biases in law enforcement 

The use of forensic samples is incomplete without a database backing the data capture and storage of the same. DNA testing can either be done in a binary within a case (a simple yes or no to a match) or assist law enforcement in identifying the parties involved using historical databases. These databases, which may host historical, biometric, or health data, draw common biases based on minority discrimination. Much like automated policing, where crime is registered in higher numbers because of the increased surveillance and dispatch of police officers, the results of DNA database categorisation are often inaccurate due to unequal testing of certain disadvantaged communities over others. Facial Recognition Technology (FRT) used in law enforcement also displays these biases, aside from previously mentioned privacy concerns, churning up inaccurate outcomes (in one case, 138 out of 140 faces were misidentified by an FRT) Beyond data and algorithmic biases, forensic science has other problems, especially DNA evidence. The lack of standardised analysis in hair, fibre and different crime scene samples can lead to wrongful convictions. This lack of standardisation is also true in fingerprint analysis, especially since the minimum required difference between two samples has yet to be standardised. Fingerprint analysts often alter their conclusions on prints and identification with additional and incremental information on prints. That is, quantifying the accuracy of a print's match is hard to determine without other evidence. While DNA evidence is a game-changer in forensics, there are limits to what DNA can help law enforcement determine. For example, partial profiles can match many more people than complete profiles. Full profiles may also match a person other than the guilty individual. Further complicating matters, a single DNA profile might be mistakenly generated when samples from multiple people are combined or collected from a crime scene. These outcomes are further complicated by different rates of DNA shedding, contamination issues, investigator biases etc., all of which still need to be fully addressed by the legislation in question.

With video evidence being under the umbrella of data collected in this Bill and the introduction of FRT to enhance Indian policing, the possible linkages of forensic data to surveillance systems need immediate oversight as lack of accountability can add to existing concerns on privacy.

DNA evidence can place suspects at the location of the crime; this, in isolation, is not enough to mandate their conviction. Thus, other evidence, such as geotagged evidence, mobile records etc., will be needed to approach the case holistically. In addition, the combination of digital and biological data digitised and maintained on a database further induces privacy concerns. These concerns regard not only the suspects but also the risk of larger audiences’ DNA being hosted by data laboratories if they have interacted with the crime scene in any capacity. In addition, DNA profiles will likely include virtually everyone since DNA is left at the crime scene before and after the crime by several persons who may not have been involved in the crime. Thus, if combined with existing data biases in law enforcement, the DNA profiling bill can contribute to data that can be misused for caste-based or community profiling in the country, especially in cases where minority groups are disproportionately criminalised. DNA can reveal sensitive information used to criminalise a community and disclose information on ancestry, feeding into social discrimination. Further, with video evidence being under the umbrella of data collected in this Bill and the introduction of FRT to enhance Indian policing, the possible linkages of forensic data to surveillance systems need immediate oversight as lack of accountability can add to existing concerns on privacy. The Bill creates an umbrella databank for multiple purposes; the main concern is the need for clarity on what data may be stored. With the recent introduction of the new Digital Personal Data Privacy Bill removing differences between sensitive personal data and personal data and adding to it the nuance of only governing digital data, privacy has become a popular concern. Since individual privacy is a criticism brought up in every facet of use, the DNA Technology Bill should not depend on launching a personal data protection bill and, in its absence, should create further clarifications on privacy guidelines. In addition, to make DNA profiling more reliable, the account must be enhanced with specific guidelines to address the use of DNA technology in combination with other tools used in the justice system to avoid a future miscarriage of justice.

• Internet Governance
• Law and Justice
• Privacy & Data Protection
• India
• criminal investigations
• Data privacy
• DNA collection
• DNA Technology
• FRT
• LAW ENFORCEMENT
• Regulation Bill
• sexual assault

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