India’s new criminal laws emphasise the use of technology and modern forensic methods to speed up justice and take the conviction rate up to “90 per cent”. DNA fingerprinting, used extensively in the developed world, is one such technique. Other than producing scientific evidence against known suspects, DNA databases of previous convicts also assist investigators with unsolved crimes. However, is it the proverbial silver bullet as touted by many in the law enforcement community?
DNA fingerprinting involves creating a profile of an individual’s genetic make-up. This throws up various legal, quality control, privacy, and human rights issues. It is therefore crucial to examine the adequacy of the systems put in place to achieve the goals of these 21st-century legislations. A comprehensive, robust, and independent regulatory and oversight mechanism, established by a statute, is imperative.
Indian laws and DNA profiling
Developed in 1984 by British geneticist Sir Alec John Jeffreys, DNA fingerprinting entails analysing a person’s DNA profile from human cells like hair, saliva, or blood and creating a profile used for identification in forensic investigations. It was first successfully applied in the twin rape and murder cases of two girls in the UK. The late Prof Lalji Singh at the Centre for Cellular and Molecular Biology (CCMB) in Hyderabad pioneered the use and application of forensic DNA technology in the Indian legal system in 1988.
The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, which replaced the Code of Criminal Procedure (CrPC), retains the provision for mandatory DNA profiling of rape case suspects, introduced in the CrPC in 2006. In addition, Section 176(3) of the BNSS mandates the collection of forensic evidence collection from crime scenes in offences punishable by seven years or more.
Another new law, the Criminal Procedure (Identification) Act 2022—which replaced the colonia-era
Identification of Prisoners Act 1920— allows the extraction and analysis of biological samples from convicts, preventive detainees, as well as those arrested for charges punishable by 7 years or more, or any offence against a woman or a child.
Notably, the National Crime Records Bureau (NCRB) has been entrusted with the responsibility of collecting measurement records from states and maintaining a national database. According to Section 2(b) of the Criminal Procedure (Identification) Act 2022 the term ‘measurement’ includes biological samples and their analysis, which also implies preparing DNA profiles. In fact, when the government withdrew The DNA Technology Regulation Bill, 2019 in July 2023, it stated that most of its provisions had already been incorporated into the 2022 Act. However, without adequate safeguards, there is a risk that individuals may be arrested simply to include them in the database.
Neither the BNSS nor the Identification Act define the term ‘DNA profile’. GeneWatch UK, in its comments on India’s DNA Technology (Use and Application) Regulation Bill 2019, noted that DNA profiling can be restricted to only non-coding DNA, a commonly used international standard. This prevents using DNA sections that code for personal characteristics, including medical conditions. Forensic geneticists, in the past, have been criticised for attempting to create mugshots—essentially predicting physical appearance—using genetic information. Given the broad categories of individuals whose biological samples can be collected by the state, such a restriction would help eliminate many possible misuses.
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Handle with care
The reliability of DNA fingerprinting has often been challenged, particularly concerning quality control during the handling of biological materials at different stages. Contamination of samples is a common problem. Polymerase Chain Reaction (PCR), the most widely used technique for amplify small DNA quantities, also amplifies contaminants.
There have been several high-profile cases of sample contamination. For instance, the defence in the OJ Simpson case argued extensively about the contamination of collected biological material. He was finally acquitted by the jury. Similarly, in the Pune Porsche hit-and-run case, the alleged culprit’s blood sample was swapped with his mother’s.
Such examples highlight the need for strict quality control mechanisms and robust protocols for forensic labs (central, state, or private), investigators, medical practitioners, and data bank managers.
The DNA Technology (Use and Application) Regulation Bill 2019 proposed the creation of a DNA Regulatory Board. This board was meant to advise the central and state governments on DNA labs and data banks and to grant accreditation to labs. However, the bill was withdrawn in July 2023. While some functions of the DNA Regulatory Board have been assigned to the NCRB, it cannot be designated as an independent regulator. Developed nations typically separate regulatory bodies from practitioners. The absence of an independent, full-time regulatory body in India does not bode well for standardising procedures across the board.
Law enforcement agencies worldwide use DNA profile indices from crime scenes to help identify suspects in unsolved crimes. In India, it is unclear which agency will maintain the Scene of Crime DNA Profile Index, and who will conduct matching with the Convict or Arrestee Indices. A PIL is pending in the Supreme Court for using DNA fingerprinting to solve missing person and unidentified dead body cases.
Sharing data with foreign law enforcement bodies by the NCRB is another ticklish issue. Profiles of investigators, medical practitioners, and forensic scientists should be prepared and maintained separately to distinguish their DNA from that of suspects in cases of multiple profiles resulting from collected samples.
After the withdrawal of the DNA Technology Bill, no oversight body has been proposed to oversee the NCRB as a repository of national or state government databases. Oversight bodies are crucial for the governance of DNA databases, ensuring they contribute effectively to the criminal justice system, meet ethical and regulatory requirements, thus maintaining public trust and accountability. As data will be stored digitally, ensuring data security and privacy is also essential.
As mandatory DNA profiling provisions are rolled out, capacity-building for forensic labs and law enforcement agencies is urgent. There could be several hiccups along the way, from the financial constraints of state governments to the availability of enough qualified scientists for forensic labs and field work. Whether the benefits of extensive use of technology will offset the associated costs remains to be seen. Given the seriousness of these new laws, an all-hands-on-deck effort is expected for their successful enforcement.
Pankaj Kumar Srivastava is an Indian Police Service officer (1992, MP cadre). He is presently working as Additional DG STF, MP. Views are personal.
(Edited by Asavari Singh)