It has been pointed out already that no knowledge of probabilities, less in degree than certainty, helps us to know what conclusions are true, and that there is no direct relation between the truth of a proposition and its probability. Probability begins and ends with probability.
– John Maynard Keynes
What is DNA?
DNA (Deoxyribonucleic acid) is the chemical basis of life that complexes with proteins to form the chromosomes. The sequential arrangement of the individual nucleotides in DNA is responsible for the distinctiveness in any given life form. [2]
Simply put, DNA is a genetic material that is found in tiny parts of our body such as a drop of blood, saliva, semen etc. No two persons can ever have 100% similar DNA, unless they are related by blood. Even in those cases, depending on the proximity of relationship, it can vary immensely.
What is DNA fingerprinting?
It is a method, by which an individual can be identified on the basis of their fingerprints. It is a less powerful tool than DNA as DNA contains information that possibly reveal way more than just identity. It could also reveal close relatives, medical history among others and hence there are human right concerns, as well as issues relating to privacy.
This information gathered could easily be misused if not placed under adequate supervision in the hands of trustworthy persons. Therefore, DNA databases must be treated with extreme caution balancing privacy with its potential landmark use in criminal justice. [3]
According to the DNA Profiling Bill, 2007, [4] “DNA data base” means a data base whether in computerized or other form, containing the indices mentioned under sub section (4) of Section 33 [5] , [6] .
The American Society of Human Genetics (ASHG) statement on DNA Banking and DNA Analysis defined a DNA bank as ‘a facility that stores DNA for future analysis’ [7]
The DNA Profiling bill, 2007 defines “DNA Data Bank” as a computerized and consolidated DNA profile storage and maintenance facility. [8]
DNA fingerprinting/profiling is helpful in case of criminal justice where DNA of the victims and suspects are collected from the scene of crime and then is matched in the DNA database with the sample obtained from the victim. Further, the DNA collected is also stored in the DNA Database for future use – which is where the problem of privacy and rights arises. [9]
Thus DNA profiling has raised issues regarding encroachment on human rights and unrestricted creation of DNA databases or DNA data banks heaved privacy concerns. Many countries have DNA databases and India is in the process of setting up one.
In this regard, the DNA Profiling Bill, 2007 is in the pipeline but is yet to be passed by Parliament due to the above-mentioned concerns.
The UK has the largest forensic DNA database in the world. The UK database already holds DNA profiles (and biological samples) from four million citizens constituting about six per cent of the population. The US CODIS database has become slightly larger in terms of the number of samples but still only represents one per cent of the population. [10]
DNA contains information that raises much broader privacy and other civil liberties concerns. There is a requirement of changes to be made to limit the development of DNA databases, safeguard privacy and human rights. But at the same time its value in criminal investigation should not be overlooked and compromised. This research paper aims to analyze pros and cons of DNA, to throw light on current scenario of DNA Banking in India, UK and USA and to harmonise the positive and negative aspects of the technology and make it responsive to the present requirement so that neither investigation or research is compromised, nor privacy and rights of people are affected. It shall however, limit its scope to discuss whether DNA Banking is actually encroaching upon Human Rights and raises Civil Liberties concerns. Also, the DNA Profiling Bill of 2007 is analysed and any repercussions on Human Rights are discussed.
II. DNA DATA BANKING, HUMAN RIGHTS AND CIVIL LIBERTIES
How does DNA profiling affect Human Rights? The main issue is inclusion of DNA of any innocent person in DNA Database. The DNA from suspects are taken and put into the DNA Databank. People volunteer to give their samples to help the police in investigation. The problem arises when innocent persons on suspicion but who are not convicted are also included within this database. Thus, DNA from innocent people is also stored in databases, which will then be available to police authority to be used whenever they require and in whatever manner they want. This encroaches upon privacy, human rights and civil liberties of those innocent people as DNA is biological matter that is unique to every person and hence shouldn’t be stored and misused for unnecessary purposes. Giving the police access to DNA samples, however, could enable a number of other biases to creep in, including “ethnic referencing”, where based on DNA, it is possible to differentiate against the ‘race’ which the person belongs to, which certain sections of society have opposed as being racial.
Effect of creation of unrestricted and unlimited databases:
1) Undermines the presumption of innocence until proven guilty
Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defence. [11]
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. [12]
Although the Constitution of the United States does not cite it explicitly, presumption of innocence is widely held to follow from the 5th, 6th and 14th amendments.
The United States Supreme Court in Coffin v. United States [13] established the presumption of innocence of persons accused of crimes.
In India as well, the presumption of innocence is considered as a fundamental principle of criminal justice system. The Indian Constitution provides for the protection of the innocent under Articles 20 and 21. The right against self-incrimination is also provided for in Article 20(3) [14] of the Constitution of India, which means that the accused is not supposed to make any statement against his will. It is a principle of common criminal law jurisprudence that is envisaged under Indian Constitution. The principle is based on another principle of common criminal law jurisprudence that a person is presumed to be innocent and it is for the prosecution to establish his guilt. [15]
In the UK too, it is a well established principle of criminal law that a person is presumed to be innocent unless proven guilty, and this principle was emphasized upon in the landmark judgement of Woolmington v DPP [16] . DNA Profiling undermines the presumption of innocence until proven guilty. The decision is accepted in a plethora of cases in India.
Even after the completion of a process, DNA database retains the information and thus every time a check is run through the system, innocent peoples’ entries is also included. Thus, a presumption of guilt exists. As has been found in the UK, including many innocent people in the database does not improve the chance of solving crimes. Instead, there are now more false matches and errors in addition to the clogging of laboratories that have been set up for DNA testing. Such a backlog could be eased if only the focus was on the guilty rather than the innocent. [17]
The English case of R (S & Marper) v Chief Constable of South Yorkshire [18] , in the the Court of Appeal in 2002 and the House of Lords in 2004 challenged the retention of fingerprints and DNA samples taken from individuals who have not been convicted of an offence as violation of Article 8 [19] and Article 14 [20] of European Convention on Human Rights. Both the courts ruled that retention of fingerprints and DNA samples either did not have an impact on private life so as to bring Article 8 into play or, if it did, was only a “modest infringement”. The courts also rejected the argument that the difference between the treatment of unconvicted persons who had not been arrested and were not on the database and those who had been arrested and thus were on it did not fall within the prohibited grounds of discrimination in Article 14 of the ECHR.
The claimants then approached European Court of Human Rights in Strasbourg and the court in case was particularly concerned that people who had not been convicted of any offence and are entitled to the presumption of innocence would be stigmatised by being treated in the same way as convicted persons. [21] The Court stated that it must be borne in mind that “the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an [accused person’s] innocence may be voiced after his acquittal”. [22] It recognised that “the retention of the applicants’ private data cannot be equated with the voicing of suspicions”. But it stated that the perception of unconvicted persons whose biodata are on the database that they “are not being treated as innocent is heightened by the fact that their data are retained indefinitely in the same way as the data of convicted persons, while the data of those who have never been suspected of an offence are required to be destroyed”. [23]
2) Encroachment to privacy
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.” [24]
In a European context, Article 8 [25] read with Article 14 [26] of European Convention on Human Rights assures privacy to human beings as Human Rights.
In the US, the Supreme Court of the United States in Griswold v. Connecticut [27] has found that other guarantees have “penumbras” that implicitly grant a right to privacy against government intrusion.
Right to Privacy is covered under Article 21 [28] of the Indian Constitution. [29] It was held by the honourable Supreme court in the case of R. Rajagopal v. State of Tamil Nadu [30] that “It is an established fact that every citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education and other matters”. Similarly in the case of Sri Banarsi Das v. Miss Teeku Dutta and Ors. [31] , the Honourable Supreme Court held that submitting to the DNA test is violation of right to privacy under article 21 of the Constitution of India.
The European Court of Human Rights in Strasbourg in the case of S & Marper observed that since “the protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private or family life”, domestic law must afford “appropriate safeguards” particularly where the data is undergoing automatic processing for police purposes. [32] Despite the advantages of a large DNA database, other Contracting States have chosen to set limits on the retention and use of such data with a view to achieving a proper balance with the competing interests of preserving respect for private life. [33]
In the Court’s judgment, the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests.” [34]
III. POSITION IN UK
Since 1984, DNA testing is allowed with limited use with the help of doctors to obtain samples. In 1993, The Royal Commission on Criminal Justice recommended the setting p of a DNA database. The database was proposed as a more objective form of forensic identification, with as much potential to eliminate suspects as to secure convictions. In 1994, [35] The Criminal Justice and Public Order Act (CJPOA) established the NDNAD, and the police could independently take samples without assistance from a doctor. The law further unreasonably stated that if a person was subsequently found guilty, their information could be stored on the database and their sample kept indefinitely; if they were not charged or were acquitted, the data and the sample had to be destroyed. [36]
Susequently, The Criminal Evidence (Amendment) Act in 1997 allowed non-intimate samples to be taken without consent from individuals who were still in prison having been convicted for a sex, violence or burglary offence prior to the NDNAD being set up in 1995. [37]
The Criminal Justice Act 2003 allowed DNA profiles to be recorded without consent from anyone in jail who was suspected of any offence – including minor ones. In addition, these records could be kept permanently, irrespective of his conviction or not. [38]
In April 2004, the Criminal Justice Act, 2003 came into force. The Counter-Terrorism Act 2008 extended police powers to allow DNA and fingerprints to be used ‘in the interests of national security’. [39]
Thus, the position regarding DNA fingerprinting and retention of DNA Profile has been constantly changing but ultimately led to violation of right of privacy of person from whom the sample has been obtained because of indefinite retention. After the Marper’s case, however, the European Court of Human Rights finally quashed the indiscriminate and arbitrary retention of samples and the extent of powers given to the police of England and Wales with respect to DNA profiling. This is the first step in the correction of a potential gross misuse of these powers.
Further, even the ECHR, alse recommends, In relation to the taking of samples, in paragraph 4 the Committee of Ministers recommends,
“The taking of samples for the purpose of DNA analysis should only be carried out in circumstances determined by the domestic law; it being understood that in some States this may necessitate specific authorisation from a judicial authority. Where the domestic law admits that samples may be taken without the consent of the suspect, such samples should only be carried out if the circumstances of the case warrants such action.” [40]
Thus, in recent times, the UK and Europe in general have finally moved forward and realized the potential dangers of having an open DNA database.
IV. POSITION IN USA
CODIS (Combined DNA Index System) is the DNA database for USA. Internationally, more than 40 law enforcement laboratories in over 25 countries use the CODIS software for their own database initiatives. [41]
The first appellate court validations of DNA-matching testimony in the US were seen only in 1988, in the decision by a Florida appeals court in the case of Andrews v. Florida [42] , where the court accepted DNA print-identificaiton evidence linking defendant to a sexual assault. [43]
CODIS, as compared to the other software, is relatively better equipped to deal with the issue of civil liberties and privacy, since it has divided the profiles in various parts according to the type of DNA collected such as say blood, or semen etc; separate indices for missing persons, voluntary contributors etc. have also been carefully segregated so that it is easier to identify and segregate them to ensure removal in future. However, there is no express provision regarding removal if the person is found guilty in the case of CODIS. [44]
However, in the case of NDIS, i.e. (The National DNA Index System), samples are collected only in accordance with state laws, and are to be disposed off if the persons are not guilty.
However, the FBI, along with 15 states, have decided to expand DNA collection efforts in April 2009 to include those who are awaiting trial as well as detained immigrants. With this expansion the bureau estimates an additional 1.2 million samples per year by 2012. This definitely raises concerns about the inclusion of several innocent people who, in all probability, haven’t even committed a single crime. [45]
In the case of US v. Kincade [46] , a 9th circuit Court of Appeals decision, the defendant appealed after a federal district judge sentenced him for violating the terms of his supervised release by refusing to submit a blood sample for DNA testing. The Court of Appeals held that the requirement under the relevant Act that certain federal offenders who were on parole probation or supervised release submit to compulsory DNA profiling, even in the absence of individualized suspicion that the had committed additional crimes, was resasonable and did not violate the 4th amendment. [47]
The position relating to privacy rights is yet to be settled in the US though, as it desperately awaits a Marper-like law as was in the UK.
V. POSITION IN INDIA
There is no DNA Data Bank existing at this point of time in the country though DNA Profiling technology does exist and DNA Profiling is being done at Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad. But there is no mechanism established by law for storage of DNA Profiles. Further, no legislation pertaining to the same has been passed till date.
The DNA Profiling Bill, 2007 [48] was introduced with an objective to “enhance protection of people in the society and administration of justice, analysis of DNA found at the scene of crime, of the victim or offender has been used to establish identity”. It also provides for eminent persons, molecular biologists, law enforcement officers etc. to set about appropriate standards for labs, as well as the creation of the position of a DNA Databank [49] Manager who would be in charge of supervision, execution and maintenance of Databanks. [50] Further, a DNA Profiling Board comprising of eminent molecular biologists, forensic experts etc. is appointed [51] , and its powers and functions according to Section 13 of the Bill include mainly ensuring practices followed by the relevant bodies are in accordance with privacy statutes, in order to protect confidentiality etc.
Chapter-VII (Sections 33-37) of the Bill provides for establishment and conduct of DNA Data Bank and provisions ancillary to it. Section 33 provides for establishment of DNA Data Banks both at Central and State level by their respective governments though a notification in official gazette. The National Bank is essentially comprised of the DNA data that has been given by the State Banks.
As followed by the NDIS in the US, India also proposes to segregate the DNA profiling into indices, such as crime-scene index, a suspects’ index, an offenders’ index, a missing persons’ index, unknown deceased persons’ index, a volunteers’ index etc. to enable better identification. Here the crucial point is regarding retention of data of volunteers. Once the investigation is over there is no purpose to keep volunteers in the record, their privacy rights are being violated in that case.
33(6) of the Bill states that the Date Bank shall contain the identity of the person from whose body substance or body substances the profile was derived in case of a profile in the offenders index and the case reference number of the investigation associated with the body substance or body substances from which the profile was derived in case of all other profiles. This provides a benefit to volunteers as their identity is not retained – only the offenders’ identity is retained.
Section 34 provides for Matching of profiles where DNA samples are matched with the DNA profiles in the Data Bank. Once this is done, it is given to the relevant Courts or tribunals that then decides on the basis of these evidence.
In order to interlink our Database with foreign databases to enable better criminal identification, Section 35 provides for exchanging information regarding DNA profiles with other international Governments or Organisations, but only with prior approval from the Government.
Often, the DNA of even victims is required in the process of finding the perpetrator of the crime. This could lead to a situation where it could be grossly misused if not protected. In order to protect the confidentiality of victims, Section 36 restricts the access to information with regards to victims of offences; as well as persons who have ceased to be suspects.
However, information relating to convicts is kept indefinitely – unless he has been acquitted.
Section 37 further gives effect to rights of persons whose conviction has been set aside by providing for expunging of their records from the data bank. As the bill has not been passed yet, not much can be concluded with regard to encroachment of Human Rights of people whose DNA will become a part of DNA Databank. Most important is proper implementation of the Act, if the bill is passed. Mainly, it is important to take into consideration, the debate that the Marper case has brought forth in order to harmonise Human Rights with criminal investigation.
VI. CONCLUSION – ROAD TO THE DNA PROFILING BILL, 2007
This is an era of technology and DNA profiling is quickly advancing. Every coin has two sides, similarly technology has its pros and cons. There is a scope of error, encroachment upon the privacy etc., but the benefits of DNA profiling to criminal investigation system cannot be overlooked. However, society must be warned of the repercussions of a technology. At the same time there is a need for legislatures to see that the negative impact of it can be either avoided or done away with so as to not hamper Human Rights and Civil Liberties of the people at large. Also it should be taken into consideration that the benefits of it are enjoyed to the fullest. A few suggestions that the author places forward are as follows :
Databases of those individual who are found innocent shall be eliminated and shall not be retained at all.
Importance needs to be placed to the concept of “informed consent” before taking the DNA of an innocent person (note that innocent here includes suspects, a person is guilty only on conviction).
Law enforcement agencies should make sure that taking DNA without consent, or through trickery or fraud will be a punishable offence under the IPC.
Data Banks that permanently hold DNA data should be used sparingly only to include convicts who have been convicted of serious offenders. Further, any information that could lead to any ‘bias’ against them, or any other member of their family is to be kept extremely confidential or deleted.
The DNA Profiling Bill, 2007 is well drafted and there are provisions regarding deletion and retention of DNA Databases. But it should be kept in mind that ‘volunteers’ shall be adequately protected for which not much is expressed in the legislation. Any legislation must take into account the pros and cons and indulge in an informative debate before deciding upon its feasibility in a country like India. While its benefits in the criminal justice system cannot be overlooked, particularly in cases of Serial offenders, and in reducing the costs of identifying future offenders; the very basic core of human rights and legal principles relating to innocence cannot be ignored. It is the author’s sincere hope that the Indian legislation, if passed shall take into consideration these matters of grave importance, before implementing at this groundbreaking legislation that could change the criminal justice system forever, for the better.