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Here’s Why The DNA Bill’s Understanding Of ‘Consent’ And ‘Privacy’ Is Concerning

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The DNA Technology (Use and Application) Regulation Bill, 2019, which seeks to control the use of DNA technology to establish the identity of a person, was introduced in the Lok Sabha earlier this year. The Minister for Science and Technology, Harsh Vardhan, on July 8, 2019, tabled the bill in the Lower House of the Parliament amidst much criticism.

The Bill has provisions to attain ‘consent‘ for the record of DNA profiling. But, if consent is not given by the individual, the Bill also seeks to bypass it altogether and use DNA for specifying identities even without consent, through a magisterial order. The DNA database will comprise:

(i) A crime scene index

(ii) A suspects’ or undertrials’ index

(iii) An offenders’ index

(iv) A missing persons’ index

(v) An unknown deceased persons’ index.

There is a provision to remove a person’s DNA from the database if found that they are not suspects by the police. There are several debates going on about the practicality and motives of the Bill. Concerns over the ethical and privacy issues related to it have been voiced, in Parliament too, and questions of how it can affect the ‘identity’ of an individual have been raised.

What Is DNA?

A section of DNA. Image Source: Wikimedia Commons

Yourgenome.org states that Deoxyribonucleic acid (DNA) is a molecule composed of two chains that coil around each other to form a double helix carrying genetic instructions for the development, functioning, growth, and reproduction of all known organisms and many viruses. DNA and ribonucleic acid (RNA) are nucleic acids. Alongside proteins, lipids and complex carbohydrates (polysaccharides), nucleic acids are one of the four major types of macromolecules that are essential for all known forms of life.

In a video by Vidyamitra, one can understand the specificity of DNA Profiling. It says DNA profiling is a forensic technique in criminal investigations, comparing criminal suspects’ profiles to DNA evidence so as to assess the likelihood of their involvement in the crime. It is also used in parentage testing, to establish immigration eligibility, and in genealogical and medical research. DNA profiling has also been used in the study of animal and plant populations in the fields of zoology, botany, and agriculture.

What Are The Concerns?

According to Max Weber, a German sociologist, human development is socially constructed, and knowledge is constructed through interaction among human beings. Emile Durkheim, said that interrelationships between individuals and society could be understood through social facts and what happens around us is a product of social constructs.

The ideas and methodology of both of these sociologies are inherently different, but they both agree and follow up that things in a society are based on social settings and are influenced by social processes. If we follow the above arguments, we can relate this to DNA Bill and how it ‘generates’ identity and consent.

How Can We Understand ‘Identity’?

It is how we perceive ourselves, or how society sees us, or an amalgamation of both. Suppose, I say to a child, “you’re intelligent”, they may develop this insight into their mind and may think of themselves as intelligent, and this could help their intelligence grow. But, at the same time, if I found them to be a relative of say, someone who has been accused of committing a crime, and I call them a derogatory term, that will be generalising their environment.

There is no guarantee that they may also become a ‘criminal’ because of their surrounding circumstances. What I am trying here to explain that there may be some undertrials where a person has not been convicted and hasn’t been able to secure bail because of financial constraints. Our prisons are crowded with many undertrials.

For example, in Veer-Zaara, the protagonist was imprisoned for years through no seeming fault of his. Another example, Jolly LLB 2, shows a person who is wrongfully arrested as a ‘terrorist’ by the police. There are problems with the way the police function in India and are in dire need of reforms. How can we maintain the database of ‘potential criminals’, knowing the errors in the pre-stages? And, once the ‘identity’ is established, this can, even if not convicted, put a person under stress throughout their life.

For representation only. Image Credit: Getty Images

Apart from this, the process of their exoneration is very time-consuming. We know that there are thousands of pending cases in courts and any administrative process, due to various processes and procedures, takes time, which might not be bearable for a person who has been suspected on the wrong ground.

Interestingly, the Bill does provide for ‘consent’. But again, if in any case the consent is not given, a police officer can, through a magisterial order, record DNA. Thus, the concept of consent is ambiguous in the Bill. As per Article 21 of the Constitution, we all have the ‘Right to Life and Liberty’, and consent is one of the dimensions of Liberty.

Therefore, the government should think of the measure where consent is given due attention. The government must amend the Bill in such a way that the ‘identity’ of a person is not infringed on, and adequate consent is taken. No one should not be coerced to give their approval.

Note: The author is part of the current batch of the Writer’s Training Program

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